On Wednesday 19 November, the Danish Presidency of the Council of the European Union will be seeking the support of the Member States for its latest compromise proposals on the mandatory mutual recognition of ‘return’ decisions taken by national authorities.
This point is an obstacle to reaching an agreement in December on the draft regulation on the return of illegal immigrants to the EU.
In a note to the Committee of Permanent Representatives, the Presidency explains that it understands “the wish of a number of delegations for mandatory mutual recognition to send a strong signal to illegally staying third country nationals, that absconding to another Member State does not prevent them from having their return decision enforced. At the same time, this strong signal should not come at the expense of efficiency. The enforcement of a return decision should not be more difficult with mutual recognition than without”.
However, the Presidency has chosen to maintain compulsory mutual recognition to show “illegally staying third country nationals that there is no point in trying to avoid returns by absconding to another Member State”.
However, the Member State responsible for enforcing the decision is given greater flexibility to choose the quickest and most effective means.
The compromise therefore allows Member States not to recognise return decisions issued by other EU countries in order to take account of public policy considerations in a greater number of situations.
Member States would also have a wider choice of situations in which they could issue their own return decision rather than one issued by another EU country, “including where the enforcement of a return decision issued by another Member State is contrary to the public policy of the enforcing Member State, in particular, when it comes to relations with third countries or to certain categories of third country nationals, such as unaccompanied minors and victims of human trafficking”, or if the enforcing Member State has put in place arrangements for cooperation with third countries that enable return or removal to be carried out more quickly and effectively.
The new text also allows Member States to issue a new return decision if the third country national has lodged an appeal with the issuing Member State.
Member States will still be able to choose not to proceed with mutual recognition of return decisions in situations where the large number of third country nationals to be returned “places a heavy burden on the capacity of the detention facilities of the enforcing Member State or on its administrative or judicial staff. This should be allowed for as long as such exceptional situation persists”.
The European return order, a form which should facilitate mutual recognition and which the European Parliament wants to be compulsory, remains optional.
And “to respond to the concerns of many Member States (...), the appeal against the return decision can only be lodged in the Member State issuing the return decision, and not in the enforcing Member State”.
In this case, if such an appeal has been lodged, the enforcing Member State has the option of not recognising the return decision and issuing its own return decision instead.
Compulsory mutual recognition will also be decided by an implementing decision of the EU Council rather than the Commission. (Original version in French by Solenn Paulic)