It seems that the Danish Presidency of the EU Council has yet to find a way forward on whether or not mutual recognition of return decisions should be mandatory (see EUROPE 13730/2).
The second compromise, submitted to the Member States on 24 October, on the regulation regarding the return of illegal immigrants to the EU, for a working group on 30 and 31 October, does not in fact contain any new wording.
The relevant new articles are “not ready”. The home affairs ministers of the EU Member States were unable to reach agreement on this aspect, between those in favour of a binding solution to make enforcing return decisions more effective and those fearing that it would increase the workload of the authorities, particularly those in so-called secondary movement countries.
As for the rest, the new text submitted to the national experts continues to relax certain procedures and formalities. It further strengthens the European nature of an entry ban issued by a Member State “by establishing an entry ban prohibiting entry into and stay on the territory of all Member States. The length of an entry ban should be determined with due regard to all relevant circumstances of an individual case and should in principle not exceed twenty years [as opposed to ten in the original text]”.
For people presenting security risks, removal should generally be the rule, and it should be possible to provide for longer or “indefinite” entry bans.
In addition, the obligations of persons subject to a return order have been strengthened.
Longer detention periods. Detention should only be maintained for as short a period as possible, generally not exceeding 24 months. And the “detention periods under other regulations or directives should not be included in calculating the maximum period of detention. Special needs arising from vulnerability assessment should be addressed during detention”, adds the text.
“Where detention has been maintained for a period of 24 months and the third-country national has been released, the Member State should have the possibility to detain the third-country national for new periods not exceeding six months, where there is a risk of absconding and where a reasonable prospect of removal has emerged due to new significant information under certain circumstances”.
Regarding the return of people who pose a security risk, “it should [...] be possible to detain [them] for a period longer than 24 months”.
Regarding agreements or arrangements with third countries, in particular to establish return centres, new rules should expand the possibilities offered to Member States to ensure returns to third countries using additional tools.
And “deficiencies in relation to specific parts of the territory of the third country or to identifiable categor[ies] of persons should not prevent the conclusions of such an agreement or arrangement, provided that sufficient guarantees are in place to ensure the full respect of the rights of the third country nationals [...] concerned”.
Flight risk. The text goes on to detail the risks of absconding that justify detention, such as entering the territory of a Member State without authorisation or the lack of residence, fixed abode or safe address.
Suspensive effect. If the third-country national requests a postponement of his or her removal, the request must be duly substantiated. And “the competent authority may grant suspensive effect to the removal”. (Original version in French by Solenn Paulic)