Returning illegal immigrants – common standards and procedures

SUMMARY OF:

Directive 2008/115/EC – common standards and procedures for returning illegally staying non-EU nationals

WHAT IS THE AIM OF THE DIRECTIVE?

It aims to ensure the European Union (EU) has an effective and humane return policy as a necessary element of a well-managed migration policy.
It establishes a common set of rules for the return of non-EU nationals who do not or who no longer fulfil the conditions for entry, stay or residence within the territory of any EU Member State, and the related procedural safeguards, while encouraging the voluntary return of illegal immigrants.

KEY POINTS

Termination of illegal stay

The illegal stay is terminated by a two-step procedure:

1.
firstly, a ‘return decision’ which opens up a ‘voluntary departure’ period;
2.
then, if necessary, a ‘removal decision’, possibly with detention, ending in ‘expulsion’.

Return decision

Unless there are compassionate, humanitarian or other reasons not to do so, or there is a pending procedure for renewing a residence permit, a Member State must issue a return decision to the non-EU national staying illegally on its territory.
If the non-EU national has a valid residence permit or equivalent from another Member State, they must immediately return to that country.
If another Member State takes back an illegally staying non-EU national under a bilateral agreement, that country is responsible for issuing the return decision.
The return decision may allow for a period of voluntary departure of between 7 and 30 days for the illegally staying non-EU national. In certain circumstances, this period may be extended; it may also be shortened and even not granted, namely when there is a risk that the illegally staying non-EU national:
- will flee and thus will not be available for return;
- has submitted a fraudulent application; or
- poses a risk to public/national security.
During the period of voluntary departure, certain obligations may be imposed on the non-EU national in order to prevent them from fleeing.
An entry ban may be given together with a return decision when no period of voluntary departure is granted or when the illegally staying non-EU national has not complied with the return decision. The duration of the entry ban is set on a case-by-case basis and may not be longer than 5 years, unless the non-EU national poses a threat to public/national security.

Removal

If no period is granted, or if the non-EU national has not complied with the return decision within the period granted for voluntary return, the Member State must enforce their removal, except in particular circumstances where the removal may be postponed. The removal of non-EU nationals must be postponed if it risks putting their lives in danger (the principle of non-refoulement*) or if the return decision has been temporarily suspended.

Coercive measures that are proportionate and do not exceed reasonable force may be used only as a last resort to remove non-EU nationals.

Detention for the purposes of removals

Under certain conditions – and with due regard to certain safeguards including judicial review – Member States may detain a non-EU national during the return procedure if there is a risk that they will flee or avoid/obstruct the preparation of return or the removal process.
The detention period may not be longer than 6 months.
Specialised detention facilities are to be used or, if this is not feasible, prison accommodation with separate quarters.

Procedural safeguards

The directive sets out a number of procedural safeguards:

information for the non-EU national;
their right of appeal;
legal assistance and representation;
linguistic assistance, if necessary.

Member States must also respect the right to family unity, provide basic education to minors and emergency medical care, and pay attention to the special needs of vulnerable people pending their voluntary return or removal.

Unaccompanied minors

Before deciding to issue a return decision in respect of an unaccompanied minor, assistance must be given by appropriate bodies in the best interests of the child. Before a Member State removes an unaccompanied minor from its territory, it must ensure that they will be returned to a member of their family or a nominated guardian or that appropriate reception facilities in the country of return are available.
The directive seeks to limit the detention of unaccompanied minors and families and sets out appropriate detention conditions.

General rules

Some categories of non-EU nationals may be excluded from the scope of the directive, such as those who are apprehended in connection with illegal border crossing. Member States must, however, ensure that the treatment and level of protection of those people meet, as a minimum, EU rules on coercive measures, removal, health care and detention. In all cases, Member States must:

ensure that any return of non-EU nationals does not put them in danger;
take into consideration the best interests of children, family life and the health of the person concerned.

To which countries does the directive apply?

The directive applies to all Member States, except Ireland, and to the following non-EU Schengen area countries: Iceland, Liechtenstein, Norway and Switzerland.

Implementation and related acts

The European Commission must report every 3 years on the directive’s application in the Member States and, if appropriate, propose amendments.
Regulation (EU) 2016/1953 establishes a uniform European travel document for the return of illegally staying non-EU nationals (European travel document for return). This document is valid for a single journey up until the time of arrival in the country of return of the non-EU national subject to a return decision issued by a Member State.
In 2017, the Commission published Recommendation (EU) 2017/432 to the Member States on making returns more effective when implementing the directive, as well as Recommendation (EU) 2017/2338 establishing a common ‘return handbook’ to be used by Member States when carrying out return-related tasks. It also proposed new measures on return policy in the form of a renewed action plan on return and a set of recommendations to Member States.
In 2023, the Commission adopted:
- a policy document entitled ‘Towards an operational strategy for more effective returns’ and its annex, the Commission’s contribution to the process of developing the operational strategy for more effective returns set out in the new pact on migration and asylum;
- Recommendation (EU) 2023/682 on the mutual recognition of return decisions and expediting returns aims to speed up the return process by encouraging the Member State responsible for the return of an illegally staying non-EU national to mutually recognise any return decision previously issued to the same person by another Member State, unless the effect of that return decision has been suspended.

FROM WHEN DO THE RULES APPLY?

The rules in the directive had to be transposed into national law by 24 December 2010, except for the rules on free legal assistance and/or representation, for which the deadline was 24 December 2011.

BACKGROUND

For further information, see:

A humane and effective return and readmission policy (European Commission).

KEY TERMS

Refoulement. The act of forcing refugees or asylum seekers to return to a country where they are likely to face persecution.

MAIN DOCUMENT

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, pp. 98–107).