On Tuesday 11 March, the European Commission will present a draft regulation establishing a common mechanism for returns, revising the Returns Directive dating from 2008.
According to a draft text seen by Agence Europe, the Commission wants to simplify the rules on returns in order to speed them up, but also to harmonise legal rights and safeguards in the Member States.
However, as feared by NGOs, it will in fact offer Member States the possibility of setting up return centres or hubs to a country with which “there is an agreement or arrangement on return” since an agreement or arrangement can only be concluded with a third country if “international human rights standards and principles, including the principle of non-refoulement, are respected”. The Commission suggests they follow a few instructions, but does not go into detail about the concept.
The agreement or arrangement entered into by a Member State with another third country will have to define the terms and conditions of the transfer, as well as the conditions relating to the period during which the third-country national stays in the country, which may be short or long-term. It will be accompanied by a monitoring mechanism to assess its implementation and take account of any developments in the situation in the third country. However, unaccompanied minors and families with minors will be excluded from this scheme.
As President Ursula von der Leyen announced on Sunday 9 March, a European Return Order will also be created. “While Member States will still issue their own return decisions, the proposal introduces a European Return Order, which will complement Member States’ return decisions to provide clarity across Member States. The European Return Order, which is a common form that will include the key elements of the return decision, will be available through the Schengen Information System”, writes the Commission.
A mechanism for mutual recognition and immediate enforcement of judgments handed down by another Member State is also included.
With regard to the return of people posing security risks, the third-country nationals concerned “must be quickly identified and returned”. The proposal therefore lays down a general obligation for the responsible authorities to carry out the necessary checks from the outset of the return process in order to support identification and verify any possible security risk.
The Regulation defines certain categories of third-country nationals falling within the scope of the special procedural rules for persons posing security risks, for example where a crime of a certain level of seriousness has been committed. “These third-country nationals will be subject to forced return, longer entry bans and a separate detention ground”.
The regulation also creates an obligation to cooperate for persons subject to a return decision, at all stages of the return procedure, in particular to establish and verify their identity with a view to obtaining a valid travel document. In particular, they will have to provide personal information, travel information and biometric data.
“Effective and proportionate consequences should be imposed, including for instance reduced benefits and allowances granted in accordance with national law, seizure of travel documents or the extension of the duration of an entry ban”.
On the issue of detention, which is kept for as short a time as possible and for as long as is necessary to ensure the success of the return, the regulation stipulates that it may not exceed twelve months, but may be extended for a period not exceeding a further twelve months where the return procedure is likely to last longer due to a lack of cooperation on the part of the third-country national concerned or delays in obtaining the necessary documents from third countries.
The proposal aims to further strengthen the provisions on forced returns, while promising to continue to encourage voluntary returns.
In addition, the regulation leaves it to the national judicial authorities to decide whether or not enforcement of the return decision should be suspended pending the outcome of the first appeal.
But “where a further appeal against a first or subsequent appeal decision is lodged, the enforcement of a return decision shall not be suspended unless the third-country national requests suspension and a competent judicial authority decides to grant it, taking due account of the specific circumstances of the individual case”. A decision will then have to be made within 48 hours, with exceptions. Agence Europe will come back on this.
Link to the draft regulations: https://aeur.eu/f/fuj (Original version in French by Solenn Paulic)