On Thursday 25 September, Member State experts meeting in the Council of the EU’s Working Party on Expulsion will debate the Danish Presidency’s first compromise on the regulation on the return of third-country nationals staying illegally in the EU (see EUROPE 13597/17).
Consulted by Agence Europe, the 19 September text no longer appears to prohibit the return of families with minors to return centres, which voluntary countries will be able to negotiate with other third countries.
Generally speaking, it clarifies, simplifies and hardens the language on return procedures.
For example, it expands the grounds on which an authority may detain a person subject to a return decision linked to the risk of absconding, and toughens the duration of exclusion orders, which could be set at more than 20 years in addition to the 10 years already set out in the Commission’s text.
The text thus states that “an entry ban may be issued for a maximum of 20 years with due regard to all relevant circumstances and in particular any duly substantiated reasons of competent authorities why it is necessary to further prevent the third-country national from entering the territory of the Member States”.
The compromise also seems to take into account the difficulties of certain Member States in accepting mutual recognition of return decisions issued by Member States.
This possibility, in binding form, will only be envisaged three years after the application of the ‘Pact on Migration and Asylum’, instead of on 1 January 2027 in the initial proposal.
It will also be possible not to enforce these decisions handed down by another national authority under new conditions, for example if their “enforcement is manifestly contrary to public policy in the enforcing Member State”.
The text also deletes numerous paragraphs on voluntary return and states that “nothing in this regulation shall prevent Member States from permitting or facilitating voluntary return of a third country national”.
30-day deadline. Under the compromise, return decisions will have to “state a departure period, which shall not exceed 30 days, by the end of which the third-country national shall at the latest leave the territory of the Member States” or “state that the third-country national shall leave the territory of the Member States immediately”.
The departure period may be specified in national law and may be longer than 30 days, or even be extended depending on the circumstances.
The text also modifies terminology, referring to countries of destination in addition to countries of return (one of the countries to which the third-country national is returned or removed) and adds “removal orders” (an administrative or judicial decision stating or declaring that the third-country national can be removed to one or more countries of destination) in addition to the return decision.
Presence of accredited NGOs. While the text seems to tighten up and simplify the definitions in order to speed up the processes, it nevertheless adds a reference to NGOs with regard to assistance for persons subject to a return decision.
“Free legal assistance and representation shall be provided by legal advisers or other suitably qualified persons, as admitted or permitted under national law, whose interests do not conflict or could not potentially conflict with those of the host Member State (…) or by non-governmental organisations accredited under national law to provide legal services or representation to third-country nationals.”.
‘Hubs’: families with minors can be transferred. The compromise also amends the provisions on return centres in third countries with which persons subject to a return decision have no direct link, authorising Member States to enter into agreements with third countries within certain red lines, as proposed by the Commission.
However, the compromise no longer excludes the transfer of families with minors, as was the case under the original regulations. It excludes only unaccompanied minors.
Where an agreement or arrangement sets out the arrangements for subsequent return to a country of destination, the agreement or arrangement provides for the following: “ - the consequences in case onward return is not possible; - the respective obligations and responsibilities of the Member State or the Union and of that third country; - the consequences to be drawn in case of significant change adversely impacting the situation of the third country; - an independent body or mechanism to monitor the effective application of the agreement or arrangement”.
The compromise also indicates that the agreement or arrangement referred to in the first subparagraph may include the conditions of detention in the third country. Agence Europe will return to this issue. (Original version in French by Solenn Paulic)