19.12.2017   

EN

Official Journal of the European Union

L 339/83


COMMISSION RECOMMENDATION (EU) 2017/2338

of 16 November 2017

establishing a common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return-related tasks

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof,

Whereas:

(1)

Directive 2008/115/EC of the European Parliament and of the Council (1) lays down common standards and procedures in Member States for returning illegally staying third-country nationals.

(2)

It is necessary to ensure that those common standards and procedures are implemented in a uniform way in all Member States, therefore a common ‘Return Handbook’ providing for common guidelines, best practices and recommendations to be used by Member States' competent authorities when carrying out return-related tasks was established by Commission Recommendation C(2015) 6250 of 1 October 2015 (2). As there are new developments in the area of return of illegally staying third-country nationals, it is necessary to update the Return Handbook.

(3)

Commission Recommendation C(2017) 1600 of 7 March 2017 (3) provides guidance on how the provisions of Directive 2008/115/EC should be used for achieving more effective return procedures, and calls on the Member States to take the necessary measures to remove legal and practical obstacles to return. The Return Handbook should therefore take into account that Recommendation.

(4)

The Return Handbook should reflect recent jurisprudence of the Court of Justice of the European Union related to Directive 2008/115/EC.

(5)

The Return Handbook should be addressed to all Member States bound by Directive 2008/115/EC.

(6)

To enhance the uniform implementation of common Union return standards, the Return Handbook should be used as the main tool for performing return-related tasks and for training purposes,

HAS ADOPTED THIS RECOMMENDATION:

1.

The Return Handbook set out in the Annex should replace the Return Handbook set out in the Annex to the Commission Recommendation C(2015) 6250.

2.

Member States should transmit the Return Handbook to their national authorities competent for carrying out return-related tasks and instruct those authorities to use it as the main tool when performing those tasks.

3.

The Return Handbook should be used for the purpose of training the personnel involved in return-related tasks as well as experts taking part in the evaluation and monitoring mechanism established by Council Regulation (EU) No 1053/2013 (4) to verify application of the Schengen acquis in the Member States.

Done at Brussels, 16 November 2017.

For the Commission

Dimitris AVRAMOPOULOS

Member of the Commission


(1)  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, p. 98).

(2)  Commission Recommendation C(2015) 6250 of 1 October 2015 establishing a common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return related tasks.

(3)  Commission Recommendation of C(2017) 1600 of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council.

(4)  Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen (OJ L 295, 6.11.2013, p. 27).


ANNEX

RETURN HANDBOOK

1.

DEFINITIONS 87

1.1.

Third-country national 87

1.2.

Illegal stay 88

1.3.

Return 90

1.4.

Return decision 90

1.5.

Removal order 91

1.6.

Risk of absconding 91

1.7.

Voluntary departure 93

1.8.

Vulnerable persons 94

2.

SCOPE 94

2.1.

Border cases — Article 2(2)(a) 95

2.2.

Special safeguards for ‘border cases’ 96

2.3.

Criminal law and extradition cases 97

3.

MORE FAVOURABLE PROVISIONS 98

4.

SANCTIONS FOR INFRINGEMENTS OF MIGRATION RULES 98

5.

APPREHENSION AND OBLIGATION TO ISSUE A RETURN DECISION 100

5.1.

Apprehension in the course of an exit check 102

5.2.

Holders of a return decision issued by another Member State 102

5.3.

Relation with Dublin rules 103

5.4.

Illegally staying third-country national holding a right to stay in another Member State 104

5.5.

Illegally staying third-country national covered by existing bilateral agreements between Member States 106

5.6.

Illegally staying third-country national benefiting from humanitarian (or other) permit/authorisation 107

5.7.

Illegally staying third-country national subject of a pending procedure renewing a permit/authorisation 107

5.8.

Special rules in legal migration directives on readmission between Member States in cases of intra-Union mobility 108

6.

VOLUNTARY DEPARTURE 108

6.1.

Extended period for voluntary departure 109

6.2.

Obligations pending voluntary departure 110

6.3.

Counter-indications 110

6.4.

Practical compliance — transit by land 111

6.5.

Practical compliance — transit by air 112

6.6.

Recording of voluntary departure 113

7.

REMOVAL 113

7.1.

Removal by air 115

7.2.

Transit by air 118

7.3.

Joint removal operations by air 118

7.4.

Return operations coordinated by the European Border and Coast Guard Agency 119

8.

FORCED-RETURN MONITORING 119

9.

POSTPONEMENT OF REMOVAL 120

10.

RETURN OF UNACCOMPANIED MINORS 121

10.1.

Assistance by appropriate bodies 122

10.2.

Return to a family member, a nominated guardian or adequate reception facilities 123

11.

ENTRY BANS 123

11.1.

EU-wide effect 124

11.2.

Use of SIS II 125

11.3.

Procedural issues 125

11.4.

Reasons for issuing entry bans 125

11.5.

Length of entry bans 126

11.6.

Withdrawal, shortening and suspension of entry bans 127

11.7.

Sanctions for non-respect of entry ban 128

11.8.

Consultation between Member States 128

11.9.

‘Historic’ entry bans 129

12.

PROCEDURAL SAFEGUARDS 130

12.1.

Right to good administration and right to be heard 130

12.2.

Decisions related to return 131

12.3.

Form of decisions and translation 133

12.4.

Legal remedies 134

12.5.

Linguistic assistance and free legal aid 135

13.

SAFEGUARDS PENDING RETURN 137

13.1.

Written confirmation 138

13.2.

Situations of protracted irregularity 138

14.

DETENTION 139

14.1.

Circumstances justifying detention 139

14.2.

Form and initial review of detention 142

14.3.

Regular review of detention 142

14.4.

Ending of detention 143

14.4.1.

Absence of reasonable prospect of removal 144

14.4.2.

Reaching the maximum period of detention 144

14.5.

Re-detention of returnees 146

14.6.

Application of less coercive measures after ending of detention 146

15.

DETENTION CONDITIONS 146

15.1.

Initial police custody 146

15.2.

Use of specialised facilities as a general rule 147

15.3.

Separation from ordinary prisoners 148

15.4.

Material detention conditions 148

16.

DETENTION OF MINORS AND FAMILIES 153

17.

EMERGENCY SITUATIONS 155

18.

TRANSPOSITION, INTERPRETATION AND TRANSITIONAL ARRANGEMENTS 156

19.

SOURCES AND REFERENCE DOCUMENTS 157

20.

ABBREVIATIONS 159

FOREWORD

This Return Handbook provides guidance to national authorities competent for carrying out return related tasks, including police, border guards, migration authorities, staff of detention facilities and monitoring bodies.

It covers standards and procedures in Member States for returning illegally staying third-country nationals and is based on Union legal instruments regulating this issue, primarily Directive 2008/115/EC of the European Parliament and of the Council (1) (the ‘Return Directive’). Return procedures are in practice often linked with other types of procedures (asylum procedures, border control procedures, procedures leading to a right to enter, stay or reside), which are regulated by other relevant Union and national legislation. In those cases, Member States should ensure close cooperation between the different authorities involved in such procedures.

The first version of the Handbook was adopted in October 2015 (2). The current version, revised in 2017, builds upon the Commission Recommendation of 7 March 2017 (3) and features additional guidance to national authorities on how the rules of the Return Directive be used to improve the effectiveness of the return systems, while ensuring full observance of fundamental rights.

Beyond appropriate standards and procedures, an effective return system needs to count on a streamlined and well integrated organisation of competences at national level. This means being able to mobilise all the actors involved in return-related procedures (for example law enforcement and immigration authorities, but also the judiciary, child protection authorities, medical and social services, staff of detention facilities) and coordinate their actions, in accordance with their role and remit, to trigger swift and adequate multi-disciplinary responses to manage individual return case. National return systems need to count on the support of a sufficient number of trained and competent staff, who can be mobilised quickly — if needed on a 24/7 basis — particularly in case of an increasing burden in implementing returns, and who can be deployed, if necessary, at the external border of the Union to take immediate measures in response to migratory pressure. For that purpose, they should ensure continuous exchange of operational information with the European Border and Coast Guard Agency and other Member States, and can rely on the technical and operational support that the Agency can provide.

In order for the return systems to be able to respond to challenges, Member States should make the best use of the flexibility provided for by the Return Directive and regularly review and adapt their structures and return capacity to respond to the actual needs to remain effective.

This Handbook does not create any legally binding obligations upon Member States and it does not establish new rights and duties. It bases itself to a large extent on the work conducted by Member States and the Commission within the ‘Contact Committee Return Directive 2008/115/EC’ in the years 2009-2017 and regroups in a systematic and summarised form the discussions that have taken place within that forum, which do not necessarily reflect a consensus among Member States on the interpretation of the legal acts.

The interpretative part of the Handbook is complemented by guidance on newly arising issues (for example new judgements of the Court of Justice of the European Union, international standards). Only the legal acts on which this Handbook is based on, or refers to, produce legally binding effects and can be invoked before a national jurisdiction. Legally binding interpretations of Union law can only be given by the Court of Justice of the European Union.

1.   DEFINITIONS

1.1.   Third-country national

Legal basis: Return Directive — Article 3(1); Schengen Borders Code (4) — Article 2(5)

Any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the right of free movement under Union law, as defined in Article 2(5) of the Schengen Borders Code.

The following categories of person are not considered ‘third-country nationals’:

Persons who are Union citizens within the meaning of Article 20(1) TFEU (previously Article 17(1) of the Treaty) = persons holding the nationality of an EU Member State (5);

Persons holding the nationality of EEA/CH;

Family members of Union citizens exercising their right to free movement under Article 21 TFEU or Directive 2004/38/EC of the European Parliament and of the Council (6);

Family members of nationals of EEA/CH enjoying rights of free movement equivalent to Union citizens.

Any other person, including a stateless person (7), is to be considered ‘third-country national’.

Further clarification:

Members of the family of EU/EEA/CH nationals, who therefore have a right of entry and residence with the Union citizen in the host Member State irrespective of their nationality, are:

(a)

the spouse and, if contracted on the basis of the legislation of a Member State and recognised by the legislation of the host Member State as equivalent to marriage, the partner with whom the EU/EEA/CH citizen has contracted a registered partnership;

(b)

the direct descendants under the age of 21 or dependants, including those of the spouse or registered partner;

(c)

the dependent direct relatives in the ascending line, including those of the spouse or registered partner.

In addition to the categories referred to in points (a) to (c), other members of the family can, under certain circumstances, also enjoy the right of free movement under Union law — notably when they have been granted the right of entry and residence under national law enacting Article 3(2) of Directive 2004/38/EC.

Third-country nationals whose claim to be a family member of a Union citizen enjoying a Union right to free movement under Article 21 TFEU or Directive 2004/38/EC was rejected by a Member State may be considered as third-country national. Such persons may therefore fall in the scope of application of the Return Directive and the minimum standards, procedures and rights foreseen therein will have to be applied. However, as regards a possible appeal against the decision rejecting being a beneficiary of Directive 2004/38/EC, the Commission considers that the person will continue — as a more favourable provision under Article 4 of the Return Directive — to be able to rely on the procedural safeguards provided for in Chapter VI of Directive 2004/38/EC (for example, as regards notification and justification of decision, the time allowed to voluntarily leave the territory, redress procedures).

1.2.   Illegal stay

Legal basis: Return Directive — Article 3(2); Schengen Borders Code — Article 6

The presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State.

This very broad definition covers any third-country national who does not enjoy a legal right to stay in a Member State. Any third-country national physically present on the territory of an EU Member State is either staying legally or illegally. There is no third option.

Legal fictions under national law which consider persons physically staying in specially designated parts of Member State territory (for example transit areas or certain border areas) as not ‘staying in the territory’ are irrelevant in this context, since this would undermine the harmonious application of the EU return acquis. Member States may, however, decide not to apply certain provisions of the return acquis to this category of persons (see section 2 below).

Following the 2016 codification of the Schengen Borders Code (SBC), reference to Article 5 SBC in Article 3(2) of the Return Directive shall be read as reference to current Article 6 SBC.

The following categories of third-country nationals are, for instance, considered as illegally staying in the Member State concerned:

Holders of an expired residence permit or visa;

Holders of a withdrawn permit or visa;

Rejected asylum seekers;

Asylum applicants who have received a decision ending their right of stay as asylum seeker;

Persons subject to a refusal of entry at the border;

Persons intercepted in connection with irregular border crossing;

Irregular migrants apprehended in Member States' territory;

Persons intercepted while transiting through a Member State's territory to reach another Member State without legal entitlement;

Persons enjoying no right to stay in the Member State of apprehension (even though they are holding a right to stay in another Member State);

Persons present on Member State territory during a period for voluntary departure;

Persons subject to postponed removal.

The following categories of persons are not considered as illegally staying since they enjoy a legal right to stay (which may only be of temporary nature) in the Member State concerned:

asylum applicants staying in the Member State in which they enjoy a right to stay pending their asylum procedure,

stateless persons staying in the Member State in which, according to national law, they enjoy a right to stay during a statelessness determination procedure,

persons staying in a Member State where they enjoy a formal toleration status (provided such status is considered under national law as ‘legal stay’),

holders of a fraudulently acquired permit for as long as the permit has not been revoked or withdrawn and continues to be considered as valid permit.

Further clarification:

Persons subject to a pending application for a residence permit may be either legally or illegally staying, depending on whether they hold a valid visa or another right to stay or not.

The situation of illegal stay does not require a minimum duration of stay or the intention of the third-country national to stay illegally on the territory of a Member State — see judgment of the ECJ in Case C-47/15, Affum  (8) (paragraph 48).

Applicants for renewal of an already expired permit are illegally staying, unless national law of a Member State provides otherwise (see also section 5.7).

Third-country nationals to whom the return procedure established by the Return Directive had been applied and who are illegally staying in the territory of a Member State without there being any justified ground for non-return (scenario referred to in paragraph 48 of ECJ judgement in Case C-329/11, Achughbabian  (9)) are illegally staying. The special reference made by ECJ in Achughbabian relates only to the compatibility of national criminal law measures with the Return Directive. Nothing is said in this judgement on the scope and applicability of the Return Directive, hence the general rule set by Article 2(1) remains applicable: ‘either A or B’, meaning that a person is either staying illegally and the Return Directive applies, or the persons enjoys a right to stay and the Return Directive does not apply.

1.3.   Return

Legal basis: Return Directive — Article 3(3)

Means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to:

(1)

his or her country of origin; or

(2)

a country of transit in accordance with Community or bilateral readmission agreements or other arrangements; or

(3)

another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted.

This definition contains limitations on what can be accepted as ‘return’ and what cannot be accepted as ‘return’ for the purposes of implementing the Return Directive. Passing back an illegally staying third-country national to another Member State cannot be considered ‘return’ under Union law. Such action may, however, be exceptionally possible under bilateral readmission agreements or Dublin rules; it is therefore recommended not to call it ‘return’, but rather ‘passing-back’ or ‘transfer’.

The definition also implies that Member States must only carry out return to a third country in the circumstances exhaustively listed in one of its three indents. Therefore, for instance, it is not possible to remove a returnee to a third country, which is neither the country of origin nor the country of transit, without consent of the returnee.

Further clarification:

‘Country of origin’ in the first indent refers to the country of nationality of the third-country national; for stateless persons, this can normally be considered to be the country of former habitual residence.

‘Country of transit’ in the second indent covers only third countries, not EU Member States.

‘Community or bilateral readmission agreements or other arrangements’ in the second indent relates to agreements with third countries only. Bilateral readmission agreements between Member States are irrelevant in this context. Such agreements between Member States may, however, in certain cases allow for passing back of irregular migrants to other Member States under Article 6(3) of the Return Directive (see section 5.5 below).

The term ‘voluntarily decides to return’ in the third indent is not tantamount to voluntary departure. ‘Voluntary’ in this context refers to the choice of the destination by the returnee. Such voluntary choice of the destination may also happen in the preparation of a removal operation: there may be cases in which the returnee prefers to be removed to another third country rather than to the country of transit or origin.

Specification of the country of return in the case of removal: if a period for voluntary departure is granted, then it is the returnee's responsibility to make sure that he/she complies with the obligation to return within the set period and there is in principle no need to specify the country of return. Only if coercive measures have to be used by Member States (removal), then it is necessary to specify to which third country the person will be removed (see section 1.5).

1.4.   Return decision

Legal basis: Return Directive — Articles 3(4) and 6(6)

An administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return.

The definition of a ‘return decision’ focuses on two essential elements. A return decision must contain:

(1)

a statement concerning the illegality of the stay; and

(2)

the imposition of an obligation to return.

A return decision may contain further elements, such as an entry ban, a voluntary departure period, designation of the country of return; when the country of return is not mentioned, Member States must ensure that the principle of non-refoulement is respected in accordance with Article 5 of the Return Directive.

Member States enjoy wide discretion concerning the form (decision or act, judicial or administrative) in which a return decision may be adopted.

Return decisions can be issued in the form of a self-standing act or decision or together with other decisions, such as a removal order or a decision ending legal stay (see section 12.1 below).

A return decision states the illegality of stay in the Member State which issues the decision, while stating the obligation to leave the territories of the EU Member States and Schengen Associated countries. Moreover, it needs to be highlighted that in accordance with Article 11, return decisions may be accompanied by entry bans having an EU-wide effect (binding on all States bound by the Return Directive).

Further clarification:

The flexible definition of ‘return decision’ does not preclude the decision imposing the obligation to return from being taken in the form of a criminal judgment and in the context of criminal proceedings — see the judgment of the ECJ in Case C-430/11, Sagor  (10) (paragraph 39).

1.5.   Removal order

Legal basis: Return Directive — Articles 3(5) and 8(3)

Administrative or judicial decision or act ordering the enforcement of the obligation to return, namely the physical transportation out of the Member State.

A removal order can either be issued together with a return decision (one-step procedure) or separately (two-step procedure). In those cases in which return decision and removal order are issued together in a one-step procedure, it must be made clear — in those cases in which a period for voluntary departure is granted — that removal will only take place if the obligation to return within the period for voluntary departure has not been complied with.

In view of the obligation of Member States to always respect the principle of non-refoulement, removal (physical transportation out of the Member State) cannot happen to an unspecified destination, but only to a specified country of return. The returnee must be made aware of the destination of the removal operation in advance so that he or she can express any reasons for believing that removal to the proposed destination would be in breach of the principle of non-refoulement and is able to make use of the right to an appeal. The Commission recommends to mention the country of return in the separate removal decision (two-step procedure), or to mention the country to which the person will be removed in the case of non-compliance with the obligation to return in the combined return and removal decision (one-step procedure), or to inform the third-country national through another decision or act.

1.6.   Risk of absconding

Legal basis: Return Directive — Article 3(7), recital 6

The existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond.

The existence (or absence) of a ‘risk of absconding’ is a decisive element for determining whether a period for voluntary departure shall be granted or not, as well as for deciding on the need of detention.

Member States must base their assessment on whether there is a risk of absconding on objective criteria fixed in national legislation. The ECJ judgment in Case C-528/15, Al Chodor  (11), related to the definition of ‘risk of absconding’ in Article 2(n) (12) of the Dublin Regulation, which text is in essence identical to the definition of Article 3(7) of the Return Directive, indirectly confirms this. In this judgment, the ECJ established that such objective criteria must be clearly set in binding provisions of general application and that settled national case-law confirming a consistent administrative practice cannot suffice. The ECJ also concluded that, in the absence of such criteria in legally binding provisions of general application, detention must be declared unlawful.

While Member States enjoy a wide discretion in determining such criteria, they should take into due account the following ones as an indication that an illegally staying third-country national may abscond:

lack of documentation,

lack of residence, fixed abode or reliable address,

failing to report to relevant authorities,

explicit expression of intent of non-compliance with return-related measures (for instance return decision, measures for preventing absconding),

existence of conviction for a criminal offence, including for a serious criminal offence in another Member State (13),

ongoing criminal investigations and proceedings,

non-compliance with a return decision, including with an obligation to return within the period for voluntary departure,

prior conduct (i.e. escaping),

lack of financial resources,

being subject of a return decision issued by another Member State,

non-compliance with the requirement to go to the territory of another Member State that granted a valid residence permit or other authorisation offering a right to stay,

illegal entry into the territory of the EU Member States and of the Schengen Associated countries.

National legislation may establish other objective criteria to determine the existence of a risk of absconding.

According to general principles of Union law, in particular the principle of proportionality, all decisions taken under the Return Directive must be adopted on the basis of an individual assessment of each case. The above list of criteria should be taken into account at any stage during the return procedure as an element in the overall assessment of each individual situation, but it cannot be the sole basis for assuming automatically a risk of absconding, as frequently it will be a combination of several of the above-listed criteria that will provide a basis for concluding the existence of such a risk. Any automatic conclusion, such as that illegal entry or lack of documents mean the existence of a risk of absconding, must be avoided. Such individual assessment must take into account all relevant factors, including the age and the health and social conditions of the persons concerned that may be directly affecting the risk that the third-country national may abscond, and may in certain cases lead to the conclusion that there is no risk of absconding even though one or more of the criteria fixed in national law are fulfilled.

In addition to the criteria mentioned above that may indicate the existence of a risk of absconding, and without prejudice to the rights of third-country nationals concerned to be heard and to an effective remedy, national legislation may also qualify certain objective circumstances as constituting a rebuttable presumption that there is a risk of absconding (i.e. the third-country national should rebut that, notwithstanding the existence of the circumstances below, such risk does not exist), such as:

refusing to cooperate in the identification process, using false or forged identity documents, destroying or otherwise disposing of existing documents, or refusing to provide fingerprints;

opposing violently or fraudulently the return operation;

not complying with a measure aimed at preventing absconding (see section 6.2),

not complying with an existing entry ban,

engaging in unauthorised secondary movement to another Member State.

The Commission recommends providing for such rebuttable presumptions in national legislation.

1.7.   Voluntary departure

Legal basis: Return Directive — Article 3(8)

Compliance with the obligation to return within the time-limit fixed for that purpose in the return decision.

Voluntary departure in the context of the Union return acquis refers to the voluntary compliance with an obligation to return to a third country. The term ‘voluntary departure’ does not cover cases in which legally staying third-country nationals decide to go back to their home country based on their own decision. Such ‘truly’ voluntary return (scenario 1 in the below picture) falls outside the scope of the Return Directive, because it concerns legally staying third-country nationals. The departure of illegally staying third-country nationals who have not been detected or apprehended yet (for instance, overstayers) can be considered as covered by the definition of ‘voluntary departure’. These persons are already under an ‘abstract’ obligation to return under the Return Directive and may receive a return decision as well as an entry ban once the authorities obtain knowledge of their illegal stay (at the latest upon exit check — see sections 5.1 and 11.3).

The Return Directive therefore covers only scenarios 2 and 3 below:

Image

Going from the national territory of one Member State to the territory of another Member State in accordance with Article 6(2) (see below section 5.4) cannot be considered as voluntary departure. The definition of voluntary departure always requires departure to a third country. Specific rules on transit by land through territories of other Member States in the context of voluntary departure are set out in section 6.4 below.

1.8.   Vulnerable persons

Legal basis: Return Directive — Article 3(9)

Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

Contrary to the definition of vulnerable persons used in the asylum acquis (see for instance Article 21 of Directive 2013/33/EU of the European Parliament and of the Council (14) (the ‘Reception Conditions Directive’) or Article 20(3) of Directive 2011/95/EU of the European Parliament and of the Council (15) (the ‘Qualification Directive’), the definition in the Return Directive is drafted as an exhaustive list.

The need to pay specific attention to the situation of vulnerable persons and their specific needs in the return context is, however, not limited to the categories of vulnerable persons expressly enumerated in Article 3(9). The Commission recommends that Member States should also pay attention to other special situations of vulnerability, such as those mentioned in the asylum acquis — being a victim of human trafficking or of female genital mutilation, being a person with serious illness or with mental disorders.

The need to pay specific attention to the situation of vulnerable persons should not be limited to the situations expressly referred to by the Return Directive (during the period for voluntary departure, during postponed return and during detention). The Commission therefore recommends that Member States should pay attention to the needs of vulnerable persons at all stages of the return procedure, as part of the assessment of the individual circumstances of each case.

2.   SCOPE

Legal basis: Return Directive — Articles 2 and 4(4)

The scope of the Return Directive is broad and covers any third-country national staying illegally on the territory of a Member State. The following Member States are currently bound by the Return Directive:

all EU Member States, except UK and Ireland,

Switzerland, Norway, Iceland and Liechtenstein.

Member States may decide not to apply the Directive to certain categories of third-country nationals:

‘border cases’, in accordance with Article 2(2)(a) of the Return Directive (see section 2.1), and

‘criminal law cases’, in accordance with Article 2(2)(b) of the Return Directive (see section 2.2).

The decision of a Member State to make use of the derogation and not to apply the Directive to ‘border cases’ or ‘criminal law cases’ must be made clear, in advance, in the national implementing legislation (16), otherwise it can develop no legal effects. There are no specific formal requirements for making known such decision. It is, however, important that it clearly derives — explicitly or implicitly — from the national legislation if and to which extent a Member State makes use of the derogation.

If a Member State has not made public, in advance, its decision to use the derogations under Article 2(2)(a) or (b) of the Return Directive, these provisions cannot be used as a justification for not applying the Return Directive subsequently in individual cases.

Nothing prevents Member States from limiting the use of the derogation of Article 2(2)(a) or 2(2)(b) of the Return Directive to certain categories of persons (for example, only refusals of entry at air borders or sea borders), provided that this is made clear in the implementing national legislation.

Member States can decide to make use of the derogation at a later stage following the initial transposition of the Return Directive into national law. This must, however, not have disadvantageous consequences with regard to those persons who were already able to avail themselves of the effects of the Return Directive (see the judgment of the ECJ in Case C-297/12, Filev and Osmani  (17): ‘[…] in so far as a Member State has not yet made use of that discretion […] it may not avail itself of the right to restrict the scope of the persons covered by that directive pursuant to Article 2(2)(b) thereof with regard to those persons who were already able to avail themselves of the effects of that directive’).

2.1.   Border cases — Article 2(2)(a)

Persons who have been refused entry and who are present in a transit zone or in a border area of a Member State are frequently subject to special rules in Member States: by virtue of a ‘legal fiction’, these persons are sometimes not considered to be ‘staying in the territory of the Member State’ concerned and specific rules are applied. The Return Directive does not follow this approach and it considers any third-country national physically staying on Member State territory as covered by its scope.

Member States are, however, free to decide not to apply the Directive to ‘border cases’, defined as third-country nationals who:

are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code  (18) , or

are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.

The use of this derogation can be useful, for instance, in the case of frontline Member States experiencing significant migratory pressure, when this can provide for more effective procedures; in such cases, the Commission recommends making use of such derogation.

National procedures for ‘border cases’ must respect the general principles of international law and the fundamental rights of the third-country nationals concerned, as well as the safeguards set by Article 4(4) of the Return Directive (see section 2.2).

Further clarification:

Article 2(2)(a) implies a direct temporal and spatial link with the crossing of the external border. It therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the external border or near that external border after it has been crossed — see judgment of the ECJ in Case C-47/15, Affum (paragraph 72).

The following categories of persons are for instance covered by the term ‘apprehended or intercepted by the competent authorities in connection with the irregular crossing […] of the external border’ because there is still a DIRECT connection to the act of irregular border crossing:

persons arriving irregularly by boat who are apprehended upon or shortly after arrival,

persons arrested by the police after having climbed a border fence,

irregular entrants who are leaving the train/bus that brought them directly into the territory of a Member State (without previous stopover in Member State territory).

The following categories of persons are not covered by the term ‘apprehended or intercepted by the competent authorities in connection with the irregular crossing […] of the external border’ because there is no more DIRECT connection to the act of irregular border crossing:

irregular entrants who are apprehended within the Member State's territory, within a certain period after irregular entry,

irregular migrants apprehended in a border region, unless there is still a direct connection to the act of irregular border crossing,

an irregular migrant leaving a bus coming from a third country, if the bus has already made several stops in EU territory,

irregular migrants who, having been expulsed at a previous occasion, infringe a still valid entry ban (unless they are apprehended in direct connection with irregular border crossing),

irregular migrants crossing an internal border — see judgment of the ECJ in Case C-47/15, Affum (paragraph 69), Article 2(2) of the Directive referring to external borders and Article 14 SBC applying at the external borders,

illegally staying third-country nationals who are leaving the territories of the Member States and of the Schengen Associated countries — see judgment of the ECJ in Case C-47/15, Affum (paragraph 71).

Practical example of cases covered by the clause ‘and who have not subsequently obtained an authorisation or a right to stay in that Member States’, to whom the derogation does not apply:

irregular entrants who have been apprehended at the external border and subsequently obtained a right to remain as asylum seeker. Even if — after final rejection of the asylum application — they become again ‘illegally staying’, they must not be excluded from the scope of the Directive as ‘border case’,

a third-country national who was subject of a refusal of entry and who is staying in the airport transit zone (and thus may be excluded from the scope of the Directive) is transferred to a hospital for medical reasons and given a short-term national permit (and not just a postponement of removal under Article 9(2)(a)) to cover the period of hospitalisation).

The form, content and legal remedies of decisions issued to third-country nationals excluded from the scope of application of the Return Directive by Article 2(2)(a) are covered by national law.

Refusals of entry according to Article 14 SBC cover everybody who does not fulfil the entry conditions in accordance with Article 6(1) SBC.

Persons who are refused entry in an airport transit zone or at a border crossing point situated on Member State territory fall under the scope of the Return Directive (since they are already physically present on the territory). However, Member States can make use of the derogation of Article 2(2)(a) stating that Member States may decide not to apply the Directive to these cases.

The exceptions for border cases under Article 2(2)(a) only apply to cases of apprehension at the external borders, not at the internal borders — see judgment of the ECJ in Case C-47/15, Affum.

The temporary reintroduction of internal border controls does not re-convert internal borders to external borders. This situation therefore does not affect the scope of application of the Return Directive.

‘Border’ and ‘border-like’ cases which may be excluded from the scope of the Directive in accordance with Article 2(2)(a) of the Directive are not the same as the cases mentioned in Article 12(3) of the same Directive (simplified procedure in case of illegal entry): illegal entry (the term used in Article 12(3)) is not synonymous with the ‘border’ and ‘border-like’ cases described in Article 2(2)(a) of the Return Directive. Example: an illegally staying third-country national who is apprehended in the territory of a Member State three months after his/her illegal entry is not covered by Article 2(2)(a) of the Return Directive but may be covered by Article 12(3) of the same Directive.

2.2.   Special safeguards for ‘border cases’

If Member States opt not to apply the Directive to border cases, they must nevertheless respect of the principle of non-refoulement and ensure — in accordance with Article 4(4) of the Return Directive — that the level of protection for affected persons is not less favourable than that set out in the Articles of the Return Directive dealing with:

limitations on use of coercive measures,

postponement of removal,

emergency health care and necessary treatment of the illness, taking into account needs of vulnerable persons, and

detention conditions.

In addition, it should be highlighted that the safeguards under the Union asylum acquis (such as in particular on access to asylum procedure) are by no means waived by the Member States' choice not to apply the Return Directive to border cases. The obligations under the Union asylum acquis include in particular an obligation of the Member States to:

inform third-country nationals who may wish to make an application for international protection on the possibility to do so,

ensure that border guards and other competent authorities have the relevant information and that their personnel receives the necessary level of training on how to recognise applicants and instructions to inform applicants as to where and how applications for international protection may be lodged,

make arrangements for interpretation to the extent necessary to facilitate access to the procedure,

ensure effective access by organisations and persons providing advice and counselling to applicants present at border crossing points, including transit zones, at external borders.

Further clarification:

Practical application of this provision in case of refusal of entry at the border: there are two possibilities: either the person is physically present in the territory of a Member State after refusal of entry at the border (for instance in an airport transit zone) or the person is not physically present in the territory of a Member State (for instance a person who was refused entry at a land border and who is still physically staying on third-country territory). In the first case, the safeguards of Article 4(4) of the Return Directive shall be applied; in the second case, Article 4(4) does not apply.

The respect of the principle of non-refoulement recognised by Article 4(4)(b) of the Return Directive — and enshrined in Article 19(2) Charter of Fundamental Rights of the European Union (‘CFR’) as well as Article 3 of the European Convention on Human Rights (‘ECHR’) — is absolute and must not be restricted under any circumstances, even if foreigners are a threat to public order or have committed a particularly serious crime. Such persons may be excluded from refugee or subsidiary protection status, but they still cannot be returned to a place where they may be tortured or killed.

2.3.   Criminal law and extradition cases

Member States are free to decide not to apply the Directive to third-country nationals who:

are subject to return as a criminal law sanction, according to national law,

are subject to return as a consequence of a criminal law sanction, according to national law, or

are the subjects of extradition procedures.

Further clarification:

The criminal law cases envisaged by this provision are those typically considered as crime in the national legal orders of Member States.

In C-297/12, Filev and Osmani, the ECJ expressly clarified that offences against the provisions of the national law on narcotics and convictions for drug trafficking may be cases to which the derogation is applicable.

In C-329/11, Achughbabian, the ECJ confirmed that this derogation cannot be used to third-country nationals who have committed only the offence of illegal staying without depriving the Return Directive of its purpose and binding effect.

Minor migration-related infringements, such as mere irregular entry or stay, cannot justify the use of this derogation.

Extradition procedures are not necessarily related to return procedures. The 1957 European Convention on Extradition (19) circumscribes extradition to surrendering ‘persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order’. However, there may be overlaps and this derogation aims at making clear that Member States have the option not to apply the procedural safeguards contained in the Return Directive when carrying out return in the context of extradition procedures.

3.   MORE FAVOURABLE PROVISIONS

Legal basis: Return Directive — Article 4

Even though the Return Directive aims at harmonising return procedures in Member States, it expressly leaves unaffected more favourable provisions contained in bilateral or multilateral international agreements (Article 4(1)).

The Return Directive also leaves unaffected ‘any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum’ (Article 4(2)) as well as ‘the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive’ (Article 4(3)).

Further clarification:

Given that the Return Directive aims at providing for common minimum standards regarding the respect of fundamental rights of the individuals in return procedures, ‘more favourable’ must always be interpreted as ‘more favourable for the returnee’ and not more favourable for the expelling/removing State.

Member States are not free to apply stricter standards in areas governed by the Return Directive: see the judgment of the ECJ in Case C-61/11, El Dridi  (20) (paragraph 33): ‘[…] Directive 2008/115/EC […] does not however allow those States to apply stricter standards in the area that it governs.’

Imposing a fine instead of issuing a return decision: the Return Directive does not permit a mechanism being put in place which provides, in the event of third-country nationals illegally staying in the territory of a Member State, depending on the circumstances, for either a fine or removal, since the two measures are mutually exclusive (see judgment of the ECJ in Case C-38/14, Zaizoune  (21)).

Applying parts of the Return Directive to persons excluded from its scope under Article 2(2)(a) and (b) is compatible with the Directive and can be considered as covered by Article 4(3), as such practice would be a more favourable one for the third-country national concerned.

4.   SANCTIONS FOR INFRINGEMENTS OF MIGRATION RULES

Legal basis: Return Directive — as interpreted by the ECJ in Cases C-61/11, El Dridi, C-329/11, Achughbabian, C-430/11, Sagor, C-297/12, Filev and Osmani, C-38/14, Zaizoune, C-290/14, Celaj, C-47/15, Affum.

Member States are free to lay down effective, proportionate and dissuasive sanctions, including imprisonment as a criminal sanction, in relation to infringements of migration rules, provided such measures do not compromise the application of the Return Directive and ensure the full observance of fundamental rights, particularly those guaranteed by the CFR interpreted in accordance with the corresponding provisions of the ECHR. It is for national law to determine which types of infringements of migration rules are to be sanctioned.

Nothing prevents Member States from addressing and taking into account in their national penal law infringements of migration rules committed also in other Member States.

Non-compliance with an entry ban: Member States can adopt criminal law sanctions against illegally staying third-country nationals who have been returned and who re-enter the territory of a Member State in breach of an entry ban. Such criminal sanction is admissible only on the condition that the entry ban issued against the third-country national complies with the provisions of the Directive. Such criminal sanctions shall ensure full observance of fundamental rights and the 1951 Geneva Convention (22), notably Article 31(1) (23) (see judgment of the ECJ in Case C-290/14, Celaj  (24)).

The Return Directive does not preclude imposing penal sanctions, following national rules of criminal procedure, in relation to third-country nationals to whom the return procedures established by the Directive have been unsuccessfully applied and who are illegally staying in the territory of a Member State without there being any justified ground for non-return. Penal sanctions aimed at dissuading such returnees from remaining illegally must ensure full observance of fundamental rights, particularly those guaranteed by the ECHR (see judgment of the ECJ in Case C-329/11, Achughbabian, paragraphs 48 and 49) and shall comply with the proportionality principle.

The Commission recommends that Member States foresee effective, proportionate and dissuasive sanctions in national legislation (for example fines, seizure of documents, reduction/refusal of benefits/allowance, refusal of work permit) in relation to third-country nationals who intentionally obstruct the return process (for example disposing of travel document, providing false identity, preventing identification, repeated refusal to embark), provided that such sanctions do not impair achieving the objective of the Return Directive and ensure full observance of fundamental rights.

Criminalisation of mere illegal stay: Member States cannot impose imprisonment under national criminal law on the sole ground of illegal stay before or during carrying out return procedures since this would delay return (see judgment of the ECJ in Case C-61/11, El Dridi). However, the Return Directive does not prevent Member States from imposing a sentence of imprisonment to punish the commission of offences other than those stemming for the mere fact of illegal stay, including in situations where the return procedures has not yet been completed (see judgment of the ECJ in Case C-47/15, Affum, paragraph 65).

Financial penalties: the imposition of a (proportionate) financial penalty for illegal stay under national criminal law is not as such incompatible with the objectives of the Return Directive since it does not prevent a return decision from being issued and implemented in full compliance with the conditions set out in the Directive (see judgment of the ECJ in Case C-430/11, Sagor). National legislation which — in the event of illegal stay — provides for either a fine or removal is incompatible with the Return Directive, since the two measures are mutually exclusive, undermining the effectiveness of the Directive (see judgment of the ECJ in Case C-38/14, Zaizoune).

In accordance with Article 5 of Directive 2009/52/EC of the European Parliament and of the Council (25) (the ‘Employers Sanctions Directive’), employers who employ illegally staying third-country nationals without authorisation are liable to pay a financial sanction that shall include the costs of return in those cases where return procedures are carried out. Member States may decide to reflect at least the average costs of return in the financial sanctions.

Immediate expulsion under national criminal law (in cases which are not excluded from the scope of the Return Directive under Article 2(2)(b) — see section 2.3 above): this is only allowed in so far as the judgement stating this penalty complies with all safeguards of the Return Directive (including on the form of return decisions, legal safeguards and advance consideration of the possibility of voluntary departure) (see judgment of the ECJ in Case C-430/11, Sagor).

House arrest under national criminal law: this is only allowed if guarantees are in place that house arrest does not impede return and that it comes to an end as soon as the physical transportation of the individual concerned out of that Member State is possible (see judgment of the ECJ in Case C-430/11, Sagor).

Further clarification:

‘Justified reasons for non-return’ may:

either be reasons outside the scope of influence of the returnee (for example delays in obtaining necessary documentation from third countries caused by bad cooperation of third-country authorities, crisis situation in country of return making safe return impossible, granting of formal postponement of return to certain categories of returnees), or

reasons within the sphere of the returnee, which are recognised as legitimate or justified by Union or national law (for example, health problems or family reasons leading to postponement of removal, pending appeal procedure with suspensive effect, decision to cooperate with authorities as witness). The mere subjective wish to stay in the EU can never be as such considered a ‘justified reason’.

‘Non-justified reasons for non-return’ may be reasons within the scope of influence of the returnee which are not recognised as legitimate or justified by Union or national law (for instance lack of cooperation in obtaining travel documents, lack of cooperation in disclosing identity, destroying documents, absconding, hampering removal efforts).

5.   APPREHENSION AND OBLIGATION TO ISSUE A RETURN DECISION

Legal basis: Return Directive — Article 6(1)

Member States shall issue a return decision to any third-country national staying illegally on their territory.

Member States are obliged to issue a return decision to any third-country national staying illegally on their territory, unless an express derogation is foreseen by Union law (see list of exceptions described below). Member States are not allowed to tolerate in practice the presence of illegally staying third-country nationals on their territory without either launching a return procedure or granting a right to stay. This obligation on Member States to either initiate return procedures or to grant a right to stay aims at reducing ‘grey areas’, to prevent exploitation of illegally staying persons and to improve legal certainty for all involved.

Member States must issue a return decision irrespective of whether the third-country national concerned holds a valid identity or travel document, and regardless of whether readmission to a third country is possible.

The validity of return decisions should not be limited in time. Competent national authorities should be able to enforce return decisions without the need to re-launch the procedure after a certain period of time (for example one year), provided that the individual situation of the third-country national concerned has not significantly changed in fact or in law (for example change in legal status, risk of refoulement) and without prejudice to the rights to be heard and to an effective remedy.

As a general rule, the relevant criterion for determining the Member State in charge of carrying out return procedures is the place of apprehension. Example: if an irregular migrant has entered the EU via Member State A (undetected), subsequently travelled through Member States B and C (undetected) and was finally apprehended in Member State D, Member State D is in charge of carrying out a return procedure. The temporary reintroduction of internal border controls between Schengen States does not affect this principle. Exceptions to this general rule are set out in sections 5.2, 5.3, 5.4, 5.5 and 5.8 below.

Further clarification:

An administrative fine under national law for illegal stay may be imposed in parallel with the adoption of a return decision. Such administrative fine cannot, however, substitute the obligation of Member States to issue a return decision and to carry out the removal (see judgment of the ECJ in Case C-38/14, Zaizoune).

Return decisions shall state the obligation that the third-country national concerned must leave the territory of the issuing Member State in order to reach a third country in accordance with the definition of ‘return’ (see section 1.3) or, in other words, that the third-country national must leave the territories of the EU Member States and of the Schengen Associated countries. Lack of clarity on the obligation incumbent on the third-country national may have the unintended consequence of creating a risk of unauthorised secondary movements.

Return decisions in accordance with the Return Directive must also be taken when a return procedure is carried out using a readmission agreement: the use of readmission agreements with a third country (covering the relations between EU Member States and third countries) does not affect the full and inclusive application of the Return Directive (covering the relation between removing State and returnee) in each individual case of return. In fact the use of the readmission agreement presumes the issuance of the return decision first.

National legislation may foresee that a third-country national is obliged to leave the territory of the EU, if his stay is illegal. Such abstract legal obligation does not constitute a return decision. It must be substantiated in each case by an individualised return decision.

Relevant Union IT systems, such as the Schengen Information Syststem II (‘SIS II’), Eurodac and the Visa Information System (‘VIS’), should be fully used by the competent national authorities to support the identification and the individual assessment of each case, as well as to facilitate and support cooperation between the Member States in return and readmission procedures.

Member States should establish efficient and proportionate measures to locate, detect and apprehend third-country nationals who are staying illegally in their territory in view of fulfilling the obligation to issue return decisions. In this respect, it is recalled that Article 13(1) SBC establishes that Member States shall apprehend and subject to return procedures third-country nationals who have crossed the external borders illegally and who have no right to stay in the EU. Article 14 of the Employers Sanctions Directive further provides that Member States shall ensure that effective and adequate inspections are carried out on their territory to control employment of illegally staying third-country nationals.

Apprehension practices — respect of fundamental rights

The obligation on Member States to issue a return decision to any third-country national staying illegally on their territory is subject to the respect of fundamental rights, including the principle of proportionality (recital 24). The legitimate aim of fighting illegal migration may be balanced against other legitimate State interests, such as general public health considerations, the interest of the State to fight crime, the interest to have comprehensive birth registration, respect for the best interests of the child (expressly highlighted in recital 22), the Geneva Convention (highlighted in recital 23), as well as other relevant fundamental rights recognised by the CFR.

The Commission refers to the considerations set out in the 2012 Fundamental Rights Agency document ‘Apprehension of migrants in an irregular situation — fundamental rights considerations’ (Council document 13847/12) as guidance on how apprehension practices can be carried out in respect of the fundamental rights of the third-country nationals, while ensuring effective return procedures. Member States' practices that respect this guidance can be considered as not affecting the obligation to issue return decisions to third-country nationals staying illegally under Article 6(1) of the Return Directive:

Access to health:

Migrants in an irregular situation seeking medical assistance should not be apprehended at or next to medical facilities.

Medical establishments should not be required to share migrants' personal data with immigration law enforcement authorities for eventual return purposes.

Access to education:

Migrants in an irregular situation should not be apprehended at or next to the school which their children are attending.

Schools should not be required to share migrants' personal data with immigration law enforcement authorities for eventual return purposes.

Freedom of religion:

Migrants in an irregular situation should not be apprehended at or next to recognised religious establishments when practicing their religion.

Birth registration:

Migrants in an irregular situation should be able to register the birth and should be able to obtain a birth certificate for their children without risk of apprehension.

Civil registries issuing birth certificates should not be required to share migrants' personal data with immigration law enforcement authorities for eventual return purposes.

Access to justice:

In the interest of fighting crime, Member States may consider introducing possibilities for victims and witnesses to report crime without fear of being apprehended. To this end, the following good practices may be considered:

introducing possibilities for anonymous, or semi-anonymous, or other effective reporting facilities,

offering victims and witnesses of serious crimes the possibility to turn to the police via third parties (such as a migrants ombudsman, specially designated officials; or entities providing humanitarian and legal assistance),

defining conditions under which victims or witnesses of crime, including domestic violence, could be granted residence permits building upon standards included in Council Directive 2004/81/EC (26) and Directive 2009/52/EC,

considering the need for delinking the immigration status of victims of violence from the main permit holder, who is at the same time the perpetrator,

developing leaflets in cooperation with labour inspectorates or other relevant entities to systematically and objectively inform migrants apprehended at their work places of existing possibilities to lodge complaints against their employers, building upon Directive 2009/52/EC, and in this context taking steps to safeguard relevant evidence.

Migrants in an irregular situation who seek legal aid should not be apprehended at or next to trade unions, or other entities offering such support.

In addition, the Commission recommends that third-country nationals in an irregular situation who wish to access public services premises which register international protection applications or applications for statelessness status should not be apprehended at or next to such facilities.

Special cases:

5.1.   Apprehension in the course of an exit check

Legal basis: Return Directive — Article 6

A return decision may in certain circumstances also be adopted if an illegally staying third-country national is apprehended at the EU external border when leaving the EU territory, following a case-by-case analysis and taking into account the principle of proportionality. This could be justified in cases in which a significant overstay or illegal stay is detected during exit checks. In such cases, Member States could launch a return procedure when acquiring knowledge about the illegal stay and continue the procedure leading to the issuing of a return decision accompanied by an entry-ban in an ‘in absentia’ procedure, respecting the procedural safeguards set out in sections 11.3 and 12 below.

Even though in such a specific situation the person is anyhow about to leave the EU, the issuing of a return decision can make sense, since it allows Member States to also issue an entry ban and thus prevent further entry and possible risk of illegal stay.

The Commission calls on Member States to establish procedures for issuing return decisions and — if applicable — entry bans directly at the airport, at other external border crossing points or, for entry bans, in absentia (see section 11.3) for such specific cases.

If a third-country national has overstayed his/her visa or permit in a first Member State and leaves the Union via a second/transit Member State, the return decision and entry ban will have to be issued by the second Member State (the ‘overstayer’ will normally also be ‘illegally staying’ within the meaning of the Return Directive in the second Member State).

5.2.   Holders of a return decision issued by another Member State

Legal basis: Council Directive 2001/40/EC (27)

Reminder/explanation: The effect of a return decision issued by one Member State in another Member State had been subject of a separate chapter V of the 2005 Commission proposal for the Return Directive (‘Apprehension in other Member States’). This chapter, as well as Article 20 of the Commission proposal which foresaw to delete Directive 2001/40/EC was, however, removed during negotiations and Directive 2001/40/EC remained in force. Directive 2001/40/EC expressly enables the recognition of a return decision issued by a competent authority in one Member State against a third-country national present within the territory of another Member State. Article 6 of the Return Directive does not expressly mention the case that a second Member State recognises a return decision issued by a first Member State in accordance with Directive 2001/40/EC. A literal interpretation of Article 6 which would require in such a case the recognising Member State to also issue a full second return decision in accordance with Directive 2008/115/EC would deprive Directive 2001/40/EC of any added value. In order to give an effet utile to the continued existence of Directive 2001/40/EC, it was necessary to look for an interpretation which gives a useful meaning to the continued co-existence of the two Directives.

If Member State A apprehends a person who is already subject of a return decision issued by Member State B, Member State A has the choice of either:

(a)

issuing a new return decision under Article 6(1) of the Return Directive; or

(b)

passing back the person to Member State B under an existing bilateral agreement in compliance with Article 6(3) of the Return Directive; or

(c)

recognising the return decision issued by Member State B in accordance with Directive 2001/40/EC.

If Member State A recognises the return decision issued by Member State B in accordance with Directive 2001/40/EC, it is still obliged to apply the safeguards related to enforcement of return (removal) foreseen in the Return Directive when enforcing the recognised return decision.

The mutual recognition of return decisions may provide for significant added value in certain constellations — notably in the context of transit of returnees by land (see section 6.4 below). The Commission encourages Member States to make use of the option of mutual recognition, whenever it helps to speed up return procedures and to reduce administrative burden.

5.3.   Relation with Dublin rules

Legal basis: Regulation (EU) No 604/2013 of the European Parliament and of the Council (28) (the ‘Dublin Regulation’) — Articles 19 and 24

Article 6 of the Return Directive does not expressly mention the case in which a second Member State makes use of the possibility offered under the Dublin Regulation to ask a first Member State to take back an illegally staying third-country national. A literal interpretation of Article 6 which would require in such a case that the requesting (second) Member State also issue a full return decision in accordance with Directive 2008/115/EC would deprive the relevant Dublin rules of their added value. The wording of the Dublin Regulation expressly addresses this issue and provides for clear rules articulating the application of the Return Directive and the Dublin Regulation.

The cases in which the third-country national has applied for asylum and obtained a right to stay as asylum seeker in the second Member State fall outside the scope of the Return Directive, since the third-country national has a right to stay as asylum seeker and cannot therefore be considered as staying illegally in the second Member State.

On the other hand, the cases in which the third-country national has not applied for asylum and has not obtained a right to stay as asylum seeker in the second Member State fall within the scope of the Return Directive. The following situations (29) could be envisaged:

(a)

The third-country national has a status as asylum seeker in the first Member State (on-going procedure, not yet a final decision): the Dublin Regulation applies on the basis of the underlying principle that every third-country national lodging an application for asylum in one of the Member States should have his/her needs for international protection fully assessed by one Member State. A Member State cannot return that third-country national to a third country; instead, it may send him/her to the Member State responsible under Dublin Regulation in order to have his/her claim examined.

(b)

The third-country national has withdrawn his/her asylum application in the first Member State: if the withdrawal of the application has led to a rejection of the application (on the basis of Article 27 or 28 of the recast Asylum Procedures Directive), the rules described below under point (c) (choice between applying Dublin rules or the Return Directive) can be applied. If the withdrawal of the application has not led to a rejection of the application, the Dublin Regulation applies (as lex specialis), on the basis of the underlying principle that every third-country national lodging an application for asylum in one of the Member States should have his/her needs for international protection fully assessed by one Member State.

(c)

The third-country national has a final decision in the first Member State, rejecting his/her asylum application: a choice can be made between applying the Dublin Regulation or the Return Directive. In the Dublin Regulation, this choice is clearly stipulated in Article 24(4) and the clarification is added that from the moment in which authorities decide to make a Dublin request, the application of the Return Directive and return procedures are suspended and only Dublin rules apply (this also affects rules on detention and on legal remedies).

(d)

The third-country national had already been subject to successful return/removal (following rejection or withdrawal of an asylum application) from the first Member State to a third country: should the third-country national re-enter EU territory, the Dublin Regulation stipulates at Article 19(3) that the first Member State can no longer be responsible for the third-country national — therefore no transfer can be foreseen to this Member State. The Return Directive will therefore apply.

Practical examples:

An applicant for international protection in Member State A travels without an entitlement to a neighbouring Member State B (crossing internal borders) where he/she is apprehended by the police. As a subject to the Dublin Regulation, he/she is transferred back from Member State B to Member State A. Should Member State B in this situation issue a return decision to this person for illegal stay in the territory?

Dublin rules prevail. No return decision can be issued by Member State B.

Is Member State A (in the scenario described above) allowed to issue a return decision itself (together with an entry ban that will be postponed until the completion of the asylum procedure)?

No. As long as the person enjoys the right to stay as an asylum seeker in Member State A, his/her stay is not illegal in that Member State within the meaning of the Return and no return decision can be issued by Member State A.

A third-country national granted international protection by Member State A is illegally staying in Member State B (for example overstaying 90 days). Is the Return Directive applicable in such cases? What will be the procedures if the person refuses to go back voluntary to the first Member State that granted protection?

The Dublin Regulation does not contain rules on taking back beneficiaries of international protection. Therefore the ‘general regime’ foreseen in Article 6(2) of the Return Directive will apply. This implies that Member State B will have to ask the person to go back to Member State A and — if the person does not comply voluntarily — Member State B has to consider issuing a return decision, taking into account all safeguards provided by the Return Directive, including in particular the principle of non-refoulement. In certain circumstances, when return/removal to a third country is not possible and ‘passing back’ the person to another Member State can be qualified as a more favourable measure (see section 3), Member State B may enforce the ‘passing-back’ of the person to Member State A; the procedures related to the ‘passing-back’ of illegally staying third-country nationals to another Member State are governed by national law.

A third-country national who had been fingerprinted following irregular entry into Member State A and who has not requested asylum in Member State A is subsequently apprehended in Member State B. Can Member State B transfer the person back to Member State A in accordance with Dublin rules?

No. Since there is not any link to an asylum procedure, the Dublin Regulation does not apply.

5.4.   Illegally staying third-country national holding a right to stay in another Member State

Legal basis: Return Directive — Article 6(2)

Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national's immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.

This provision — which replaces a similar rule contained in Article 23(2) and (3) of the Schengen Implementing Convention (‘SIC’) (30) — foresees that no return decision should be issued to an illegally staying third-country national who is holding a valid permit to stay in another Member State. In such cases, the third-country national should in the first place be required to go immediately back to the Member State where he/she enjoys a right to stay. Only if the person does not comply with this request or in cases of risk for public policy or national security, a return decision shall be adopted.

Further clarification:

The form in which the request ‘to go to the territory of that other Member State immediately’ is issued should be determined in accordance with national law. It is recommended to issue decisions in writing and with reasons. In order to avoid confusion, the decision should not be labelled ‘return decision’.

Period for going back to other Member State: no general indication can be given regarding the time which should elapse between the request to go to the territory of another Member State until the moment at which a return decision in accordance with Article 6(1) is issued. An appropriate time frame should be chosen in accordance with national law, taking into account the individual circumstances, the principle of proportionality and the fact that the term ‘immediately’ is used in the legal provision. The time between the request to go to the other Member State and the issuing of a return decision under Article 6(1) must not be counted as part of an eventual period for voluntary departure, since such period is an element of the return decision and will start running only with the issuing of a return decision.

Control of departure to another Member State: Union law does not specify how compliance with the obligation to go back to the other Member State has to be controlled. Member States should make sure, in accordance with national law, that appropriate follow-up is given to their decisions.

Verification of validity of permits/authorisations issued by another Member State: there is currently no central system for exchanging information between Member States on this issue. Member States are encouraged to cooperate bilaterally and provide without delay relevant information to each other, in accordance with national law and bilateral cooperation arrangement. Existing national contact points (for instance those listed in annex 2 of the Schengen Handbook (31)) might also be used for this purpose.

The term ‘residence permit or other authorisation offering a right to stay’ (32) is very broad and covers any status granted or permit issued by a Member State which offers a right to legal stay, and not just an acceptance of temporary postponement of return/removal.

The term covers the following:

long-term visa (it clearly offers a right to stay),

temporary humanitarian permit (in so far as such permit offers a right to stay and not just a mere postponement of return),

an expired residence permit based on a still valid international protection status (the status of international protection is not dependent on validity of the paper demonstrating it),

a valid visa in an invalid (expired) travel document — according to relevant Union legislation, it is not allowed to issue a visa with a validity going beyond the validity of the passport. The case of a valid visa in an expired passport should therefore never appear in practice. If this case nevertheless arises, the third-country national concerned should not be unduly penalised. For detailed guidance on the relevant Visa rules see the updated Visa Handbook — part II, Point 4.1.1 and 4.1.2 (33).

The term does not cover the following cases:

an expired residence permit based on an expired residence status,

counterfeit, false and forged passports or residence permits,

paper certifying temporary postponement of removal,

toleration (in so far as toleration does not imply a legal right to stay).

As a general rule no removal to other Member States: if a third-country national does not agree to go back voluntarily in accordance with Article 6(2) to the Member State of which he/she holds a permit, Article 6(1) becomes applicable and a return decision, providing for direct return to a third country shall be adopted. It is not possible to pass back the person to the other Member State with force, unless an existing bilateral agreementbetween Member States which was already in force on 13 January 2009 (see section 5.5) provides expressly for this possibility or in certain circumstances when return/removal to a third country is not possible and the Member State that issued the permit agrees to take the person back.

No issuing of EU entry bans when using Article 6(2): when passing back an illegally staying third-country national to another Member State under Article 6(2), no EU entry ban can be issued under Article 11, because Article 11 applies only in connection with the issuing of a return decision and does not apply in cases in case of a ‘passing-back’ to another Member State. Moreover, it is pointless from a practical point of view to issue an EU entry ban in a situation where the person will continue to legally stay in another Member State.

Immediate departure required for reasons of public policy or national security: in the exceptional circumstances addressed by Article 6(2)(second phrase) (second case), the person shall be immediately made subject of a return decision and removed to a third country. The Member State where the person enjoys the right to stay should be informed about this fact.

Practical example:

What provisions of the Return Directive should be applied with regard to third-country nationals detected in Member State A, who possess a valid residence permit issued by Member State B and at the same time are subject of an SIS alert (entry ban) initiated by Member State C?

Member State A should apply Article 6(2) of the Directive and ask the person to go back to Member State B. As regards the co-existence of an entry ban issued by Member State C and a residence permit issued by Member State B, this must be clarified bilaterally between the Member State issuing the alert (C) and the Member State which had issued the permit (B) in accordance with Article 25(2) Schengen Implementing Convention.

5.5.   Illegally staying third-country national covered by existing bilateral agreements between Member States

Legal basis: Return Directive — Article 6(3)

An indicative list of existing bilateral readmission agreements between Member States can be found at: http://rsc.eui.eu/RDP/research/analyses/ra/

Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive (i.e. 13 January 2009). In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1.

This provision foresees — as an exception and in the form of a ‘standstill clause’ — the possibility for Member States to pass back irregular migrants to other Member States under bilateral agreements or arrangements existing on 13 January 2009.

Historic reminder/explanation: this provision was included into the text of the Return Directive at a late stage of negotiations following a strong request from certain Member States which insisted that the Directive should not oblige them to change well-established practices of taking/passing back illegally staying third-country nationals to other Member States under bilateral agreements.

The principle upon which the Return Directive is based is direct return of illegally staying third-country nationals from the EU to third countries. Article 6(3) of the Directive therefore lays down an exception that concerns solely the obligation of the Member States on whose territory the third-country national is present to issue a return decision, that obligation then falling to the Member State that takes him back. It does not lay down an exception to the scope of the Return Directive additional to those set by Article 2(2) — see judgment of the ECJ in Case C-47/15, Affum (paragraphs 82-85).

Further clarification:

Subsequent use of bilateral agreements between Member States A-B and B-C: the Return Directive, notably Article 6(3), does not expressly interdict ‘domino’ taking back under existing bilateral arrangements. It is, however, important that in the end a full return procedure in accordance with the Directive will be carried out by one Member State. Since this kind of subsequent procedures is cost intensive for administrations and involves additional discomfort for the returnee, Member States are encouraged to refrain from applying this practice.

No EU-wide entry bans when using Article 6(3): when passing back an illegally staying third-country national to another Member State under Article 6(3) no EU entry ban can be issued under Article 11, since Article 11 applies only in connection with the issuing of a return decision and does not apply in case of mere ‘passing back’ to another Member State. Moreover, it is pointless from a practical point of view to issue an EU entry ban in a situation in which the person does not yet leave the EU. As regards the possibility to issue purely national entry bans in exceptional circumstances under Article 25(2) SIC, see section 11.8.

Decision to transfer the third-country national to another Member State: such decision constitutes one of the measures provided for by the Return Directive to bring the illegal stay to an end and is a stage preparatory to removal from the territory of the Union. Member States must therefore adopt such decision with diligence and speedily, so that the transfer to the Member State responsible for the return procedure takes place as soon as possible — see judgment of the ECJ in Case C-47/15, Affum (paragraph 87).

Since the notion of ‘return’ under the Return Directive always implies return to a third country, it is recommended to call this kind of national decision ‘transfer decision’ or ‘passing-back decision’ and not to call it ‘return decision’.

Standstill clause: Article 6(3) is an express ‘standstill’ clause. Member States may only use the option offered by Article 6(3) in relation to bilateral readmission arrangements that entered into force before 13 January 2009. Existing agreements which were renegotiated or renewed after 13 January 2009 may continue to be covered by Article 6(3) if the renegotiated/renewed agreement is an amendment of the already existing agreement and clearly labelled as such. If the renegotiated/renewed agreement is an aliud (an entirely new agreement with different substance), then Article 6(3) would not cover it anymore.

Readmission agreements between Schengen Member States and the UK: for the purposes of interpreting Article 6(3), the UK is to be considered as a Member State.

5.6.   Illegally staying third-country national benefiting from humanitarian (or other) permit/authorisation

Legal basis: Return Directive — Article 6(4)

Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.

Member States are free — at any moment — to grant a permit or right to stay to an illegally staying third-country national. In this event, any pending return procedures shall be closed and an already issued return decision or removal order must be withdrawn or suspended, depending on the nature of the permit. The same applies in cases in which Member States have to grant a right to stay, for example following the submission of an asylum application.

It is up to Member States to decide which approach (withdrawal or suspension of the return decision) should be applied, taking into account the nature and likely duration of the permit or right to stay which was granted, and the need to ensure effective return procedures. However, according to the judgment of the ECJ in Case C-601/15, J.N.  (34) (paragraphs 75-80), when a Member State grants the right to remain on its territory to a third-country national who applied for international protection and who was already subject to a return decision prior to the application, Member States should suspend the enforcement of the return decision (and not withdraw the decision) until a decision on the application for international protection is taken (see also section 7).

5.7.   Illegally staying third-country national subject of a pending procedure renewing a permit/authorisation

Legal basis: Return Directive — Article 6(5)

If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6.

Member States are free to refrain from issuing a return decision to illegally staying third-country nationals who are waiting for a decision on the renewal of their permit. This provision is intended to protect third-country nationals who were legally staying in a Member State for a certain time and who — because of delays in the procedure leading to a renewal of their permit — temporarily become illegally staying. This provision refers to a pending procedure forrenewal of a residence permit in the Member State of apprehension only (‘that Member State’). Member States are encouraged to make use of this provision also in cases in which it is likely that the application for renewal will be successful and to provide the persons concerned at least with the same treatment as the one offered to returnees during a period for voluntary departure or during postponed return.

This provision does not cover pending procedures for renewal of a residence permit in another Member State. The fact that a person is subject to a pending procedure for renewal of a residence permit in another Member State may, however, in specific circumstances justify postponement of return in accordance with Article 9(2) or the application of more favourable measures in accordance with Article 4(3).

5.8.   Special rules in legal migration directives on readmission between Member States in cases of intra-Union mobility

Legal basis: Directive 2014/66/EU of the European Parliament and of the Council (35) (the ‘Intra-Corporate Transfers Directive’) — Article 23; Council Directive 2003/109/EC (36) (the ‘LTR Directive’) (amended by Council Directive 2011/51/EU (37)) — Articles 12 and 22; Council Directive 2009/50/EC (38) (the ‘Blue Card Directive’) — Article 18

The above-quoted Directives contain special rules on readmission between Member States in cases of intra-EU mobility of certain categories of third-country nationals (intra-corporate transfers, holders of EU Blue Cards, long-term residents). These provisions are to be considered as leges speciales (more specific rules) which have to be followed in the first place in those cases expressly covered by the said Directives.

6.   VOLUNTARY DEPARTURE

Legal basis: Return Directive — Article 7(1)

A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the third-country national concerned. In such a case, Member States shall inform the third-country nationals concerned of the possibility of submitting such an application.

The promotion of voluntary departure is one of the key objectives of the Return Directive. Unless there are reasons to conclude that this would undermine the purpose of return, voluntary departure in compliance with an obligation to return is preferable to removal for the threefold reason that it is a more dignified, safer and frequently more cost-effective return option.

During the period for voluntary departure, the third-country national concerned is under the obligation to return, although this obligation cannot be enforced until the expiry of such period, or if a risk of absconding or a risk to public policy, public security or national security emerge, or an application for legal stay is dismissed as manifestly unfounded or fraudulent (see section 6.3). Member States are encouraged to provide the possibility of voluntary departure to the largest possible number of returnees and to refrain from doing so in those cases in which there is a risk that this might hamper the purpose of the return procedure.

The last sentence of Article 7(1) allows Member States to decide to subject access to a period for voluntary departure to an application by the third-country nationals. In such case, information about the possibility to apply for a period for voluntary departure must be given individually to the third-country nationals concerned. General information sheets for the public (for example an announcement of the possibility of submitting such application on the website of the immigration offices or printing adds and posting them on information panels in the premises of the local immigration authorities) may be helpful but needs to be complemented with individualised information. Such information should be provided to minors in a child-sensitive and age- and context-appropriate manner, and particular attention should be paid to the situation of unaccompanied minors.

Member States may also decide to grant a period for voluntary departure upon application for certain categories of illegally staying third-country nationals (for example those whose application for legal stay is rejected as manifestly unfounded or fraudulent) or for or obtaining support (for instance reintegration assistance), and to grant it without prior application in other cases.

The Commission recommends granting a period for voluntary departure following a request by the third-country nationals concerned, while ensuring that the necessary information for submitting an application is duly and systematically provided to the third-country nationals.

Assisted voluntary return programmes: while the Return Directive does not require Member States to establish an assisted voluntary return programme, its recital 10 affirms that ‘in order to promote voluntary return, Member States should provide for enhanced return assistance and counselling and make best use of relevant funding possibilities’. Member States are therefore strongly encouraged to make assisted voluntary return programmes available throughout the procedures, as part of the efforts to promote a more humane and dignified return and, in general, to increase the effectiveness of return. To facilitate access to such schemes and to ensure that an informed decision is taken by the third-country nationals concerned, Member States should ensure adequate dissemination of information on voluntary return and assisted voluntary return programmes, also in cooperation with national authorities who may be in direct contact with third-country nationals (for example education, social and health services), non-governmental organisations and other bodies. When providing such information to minors, this should be done in a child-sensitive and age- and context- appropriate manner. National programmes should follow the Non-binding Common Standards for Assisted Voluntary Return (and Reintegration) Programmes implemented by Member States (39) developed by the Commission in cooperation with the Member States, and endorsed by the JHA Council in its Conclusions of 9-10 June 2016 (40).

The Return Expert Group (REG) of the European Migration Network (EMN) aims at facilitating improved practical cooperation among States and stakeholders in the field of return, assisted voluntary return and reintegration programmes. It should be a key tool for the gathering and sharing of information and Member States are encouraged to make active use of it.

Further clarification:

The time frame of 7-30 days constitutes a general principle. It is binding for Member States to fix a period which respects this frame, unless specific circumstances of the individual case justify an extension in accordance with Article 7(2) of the Return Directive (see section 6.1).

Granting 60 days as a general rule would be incompatible with the harmonisation and common discipline provided for by the Return Directive to have a frame of 7-30 days, therefore it cannot be justified as more favourable provision under Article 4(3). However, periods between 30-60 days (exceeding the range harmonised by paragraph 1) which may be granted only in the presence of specific circumstances (referred to in paragraph 2) are covered by Article 7(2) of the Return Directive.

In line with the requirements deriving from the right to be heard, as recognised Article 41(2) CFR, Member States should provide the returnee with a possibility to specify individual circumstances and needs to be taken into account when determining the period to be granted, both in cases where the period for voluntary departure is determined ex officio and in cases in which the period is fixed following an application by the returnee.

Although the Return Directive prohibits to forcibly return an illegally staying third-country national during the period for voluntary departure, it does not prevent Member States from launching the necessary administrative procedures during that period in view of the possible enforcement of a return decision (for example establishing contacts with the authorities of third countries for obtaining travel documents, organising the logistics for the removal operation).

Based on an individual assessment of the situation of the third-country national, and taking particularly into account the prospect of return and the willingness of the third-country national to cooperate with the competent authorities, the Commission recommends that Member States grant the shortest period for voluntary departure that is needed to organise and carry out the return. A period longer than seven days should be granted only when the third-country national actively cooperates in the return process.

6.1.   Extended period for voluntary departure

Legal basis: Return Directive — Article 7(2)

Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links.

There is no pre-fixed maximum time limit for the extension of the period for voluntary departure and each individual case should be treated on its own merits in accordance with national implementing legislation and administrative practice. Member States enjoy a wide margin of discretion in determining whether the extension of the period for voluntary departure would be ‘appropriate’. Taking into account the reference in the text to children attending school, extensions of the period for voluntary departure until the end of the semester or of the school year, or for up to one school year, may be granted provided that this is in the child's best interests and that all relevant circumstances of the case are duly taken into account.

An extension of the period beyond 30 days can be granted from the outset (the point of time when the return decision is issued), if justified by the individual assessment of the circumstances of the case. It is not necessary to first issue a 30-day period and to subsequently extend it.

The term ‘where necessary’ refers to circumstances both in the sphere of the returnee and in the sphere of the returning State. Member States enjoy discretion relating to the substance and the regulatory depth of their national implementing legislation on this issue.

The three subcases mentioned in Article 7(2) (length of stay, children attending school, family links) should be expressly respected in national implementing legislation and administrative practice. Member States' administrative rules can be more detailed and also provide for other reasons for extension, but should not be less precise, undermining harmonisation.

6.2.   Obligations pending voluntary departure

Legal basis: Return Directive — Article 7(3)

Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure.

The obligations set out in Article 7(3) of the Return Directive can be imposed where there is a risk of absconding to avoid. If the individual assessment of the case shows that there are no particular circumstances, such obligations are not justified — see judgment of the ECJ in Case C-61/11, El Dridi, paragraph 37: ‘It follows from Article 7(3) and (4) of that directive that it is only in particular circumstances, such as where there is a risk of absconding, that Member States may, first, require the addressee of a return decision to report regularly to the authorities, deposit an adequate financial guarantee, submit documents or stay at a certain place or, second, grant a period shorter than seven days for voluntary departure or even refrain from granting such a period’. The Commission recommends that Member States use such possibility when there is a risk of absconding to avoid during the period for voluntary departure.

Attention should be paid to the fact that the possibility for Member States to impose certain obligations may be an advantage for the returnee since it may allow the grant of a period for voluntary departure in cases which would not normally otherwise qualify for such treatment.

It is not possible to give a generally applicable figure of what amount constitutes an ‘adequate financial guarantee’. In any case the proportionality principle should be respected, that is to say the amount should take into account the individual situation of the returnee. Current Member State practice foresees amounts varying from around EUR 200 to EUR 5 000.

If that is required in an individual case, the obligations mentioned in Article 7(3) can also be imposed in a cumulative manner.

When imposing obligations under Article 7(3), Member States should take into account the individual situation of the returnee and ensure full respect of the proportionality principle. Member States shall avoid imposing obligations which can de facto not be complied with (for example if a person does not possess a passport, he/she will not be able to submit it).

6.3.   Counter-indications

Legal basis: Return Directive — Article 7(4)

If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.

Member States are free to refrain from granting a period for voluntary departure in those cases — exhaustively listed in Article 7(4) of the Return Directive — in which there is a ‘counter-indication’, i.e. when the third-country national poses a risk of absconding (see section 1.6) or a risk to public order, public security or national security (for example previous convictions for serious criminal offences committed also in other Member States), and when a request for legal stay (for example asylum application, request or renewal of permit) has been dismissed as manifestly unfounded or fraudulent.

When, on the basis of an individual assessment, it can be established that such ‘counter-indications’ exist in a specific case, a period for voluntary departure should not be granted and a period shorter than 7 days should be granted only if it does not prevent national authorities from carrying out removal.

Member States may, however, change their assessment of the situation at any moment (a previously non-cooperating returnee may change attitude and accept an offer for assisted voluntary return) and grant a period for voluntary departure even though there was initially a risk of absconding.

Further clarification:

It is not possible to exclude in general all illegal entrants from the possibility of obtaining a period for voluntary departure. Such generalising rule would be contrary to the definition of risk of absconding, the principle of proportionality and the obligation to carry out a case-by-case assessment, undermining the effet utile of Article 7 (promotion of voluntary departure).

It is possible to exclude under Article 7(4) third-country nationals who submitted abusive applications. Article 7(4) expressly covers manifestly unfounded or fraudulent applications. Abusive applications normally involve a higher degree of reprehensible behaviour than manifestly unfounded applications, therefore Article 7(4) should be interpreted as also covering abusive applications.

It is also possible to exclude persons who pose a risk to public policy, public security or national security. In Case C-554/13, Zh. and O.  (41), the ECJ clarified in this respect that Member States essentially retain the freedom to determine the requirements of the concept of public policy in accordance with their national needs. The concept of ‘risk of absconding’ is distinct from that of ‘risk to public policy’. The concept of ‘risk to public policy’ presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. A Member State cannot deem a third-country national to pose a risk to public policy on the sole ground that that national is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law. Other factors, such as the nature and seriousness of that act, the time which has elapsed since it was committed and any matter which relates to the reliability of the suspicion that the third-country national concerned committed the alleged criminal offence is also relevant for a case-by-case assessment which has to be carried out in any case.

6.4.   Practical compliance — transit by land

Annex 39 to the Schengen Handbook, ‘Standard form for recognising a return decision for the purposes of transit by land’

Map of participating Member States (available as EMN ad hoc query, return, 2015, at the EMN Europa website)

Reminder/explanation: a returnee who intends to leave the territory of the EU by land within the period for voluntary departure does not have any valid visa or other permission to transit through another Member States to his/her country of return, therefore running the risk of being apprehended/stopped by the police on the way and being subject of a second return decision issued by the transit Member State. This runs contrary to the policy objective of the Return Directive to ensure effective return, including through voluntary departure.

Issuing a transit visa to the returnee would be an inappropriate and inadequate solution, since granting a visa to illegally staying third-country nationals who are obliged to leave would be contrary to EU rules on visa. Moreover transit Member States do not seem to have any incentive to issue such kind of visa (risk that persons may abscond and/or cause removal costs) and would in practice therefore frequently refuse issuing the visa. Providing for a ‘European laissez-passer’ for the returnee does not offer a solution either: in the absence of a clearly defined legal nature and legal effects of such a ‘laissez-passer’, the returnee would — strictly legally speaking — still be considered as illegally staying in the transit Member State and might therefore be subject of a new return decision in accordance with Article 6(1).

One way of avoiding the problem is to promote direct return to third countries by air. This may, however, be expensive and unpractical for the returnee.

An approach expressly recommended by the Commission is for the transit Member States to recognise return decisions issued by the first Member State using Annex 39 to the Schengen Handbook ‘Standard form for recognising a return decision for the purposes of transit by land’ (issued by the Commission in September 2011, following consultations with concerned Member States at technical level and discussion within the Migration-Expulsion Working Party of the Council of the European Union).

According to this approach, the transit Member State may recognise the return decision, including the period for voluntary departure, granted by the first Member State and will let the returnee transit on the basis of the recognised decision and the recognised period for voluntary departure. This approach has the advantage that the transit Member State is not obliged to issue a new return decision and that it can ask the first Member State to reimburse all cost related to removal if something goes wrong and the returnee needs to be removed at the cost of the transit State (in application of Council Decision 2004/191/EC (42)).

Those Member States which are still reluctant to use this voluntary option (either as sending or receiving Member State) are encouraged to join in and to inform Commission and other Member States about their participation.

Further clarification:

Form of recognition: the very broad and general wording of Directive 2001/40/EC provides for discretion as regards the practical modalities (procedural details) for mutual recognition in accordance with practical needs and national legislation. The form proposed in Annex 39 of the Schengen Handbook is one possible but not the exclusive way to proceed.

Legally speaking, all relevant elements of the return decision issued by Member State A are recognised by Member State B, including recognition of the statement that the third-country national is illegally staying and enjoys a period for voluntary departure — with effect for the territory of the recognising Member State B.

The recognising Member State enjoys three different ‘safeguards’, namely:

(1)

use of the standard form of Annex 39 is made on a voluntary basis only; this always leaves Member States with the option not to recognise a return decision issued by another Member State in a specific individual case;

(2)

the first Member State may only grant a period for voluntary departure in accordance with Article 7 of the Return Directive if there is no ‘counter-indication’, such as a risk of absconding. The assessment of the personal situation of returnees in accordance with Article 7 which has to be carried out by the first Member State may be a helpful reassurance for the recognising transit Member State;

(3)

if something goes wrong and the returnee needs to be removed at the cost of the transit State, all cost related to removal can be charged to the first Member State in application of Council Decision 2004/191/EC.

6.5.   Practical compliance — transit by air

Council Directive 2003/110/EC (43) on assistance in cases of transit for the purpose of removal by air provides for a legal frame on cooperation between the competent authorities at Member States' airports of transit with regard to both escorted and unescorted removal by air. The term ‘unescorted removal’ in this Directive (which was adopted five years before the Return Directive) can be interpreted as also covering ‘voluntary departure’ within the meaning of the Return Directive (44). The Commission recommends to make systematic use of Directive 2003/110/EC when organising transit by air in the context of voluntary departure (see also section 7.2).

6.6.   Recording of voluntary departure

Currently there is no central EU system for keeping track of voluntary departure. In cases of transit by land of returnees in accordance with the recommendation set out in Annex 39 to the Schengen Handbook, a confirmation is faxed back from the border guard to the Member State that issued the return decision. In other cases, returnees sometimes report back via Member States' consulates in third countries. Sometimes departure is also registered by border guards conducting exit checks. The absence of a central Union system for keeping track of voluntary departure creates a gap, both in terms of enforcement verification and in terms of statistics. The Commission proposal for a Regulation on the use of the Schengen Information System for the return of illegally staying third-country nationals (45) aims at addressing this situation.

In the short term, Member States should put in place means to verify whether a third-country national has left the Union, including within the period for voluntary departure and without assistance, to ensure an effective follow up in case of non-compliance. Member States are encouraged to make best use of the available information channels and for this purpose:

(1)

Systematically encourage those returnees who are granted a period for voluntary departure to inform the authorities who had issued the return decision (and entry ban) about their successful departure. The returnee may signal his departure to the border guard upon departure, at the consular representation of a Member State in his country of origin following return, or even in writing with sufficient proof in annex. In order to enhance this practice, an information sheet may be systematically attached to the return decision or to the travel document, containing the name and other identifiers of the third-country national, instructions and contact details of the issuing authority, so that the border guard could stamp it at exit and send it back as proof of departure to the issuing authority. Such information sheet could also specify the benefits for the returnee of informing the authorities about successful departure.

(2)

Ask border guards conducting exit checks to enquire — when they become aware of the exit of an irregular migrant — whether the returnee is subject of a return decision accompanied by a period for voluntary departure and, if this is the case, to systematically inform the authorities who issued the return decision about departure.

(3)

Use Annex 39 (see section 6.4) for confirming the departure of illegally staying third-country nationals transiting by land through the territory of a Member State other than the one that issued the return decision.

Member States should also consider establishing contacts with airline companies to obtain information on whether the third-country nationals that returned unescorted were present on board of the airplane at the moment of expected departure.

7.   REMOVAL

Legal basis: Return Directive — Article 8(1)-(4)

1.

Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.

2.

If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period.

3.

Member States may adopt a separate administrative or judicial decision or act ordering the removal.

4.

Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.

The Return Directive fixes an objective (‘enforce the return decision’) which should be achieved in an effective and proportionate manner with ‘all necessary measures’, whilst leaving the concrete modalities (the ‘how’) up to Member States' legislation and administrative practices — see judgment of the ECJ in Case C-329/11, Achughbabian, paragraph 36: ‘[…] the expressions “measures” and “coercive measures” contained therein refer to any intervention which leads, in an effective and proportionate manner, to the return of the person concerned’.

Irrespective of the duties of third-country nationals to cooperate on their identification and to request the necessary documents to their national authorities, the obligation on the Member States to take ‘all necessary measures’ also include to timely request to the third country of readmission to deliver a valid identity or travel document, or to request accepting the use of the European Travel Document for Return (46) if foreseen by the agreements or arrangements in force with the third country, in order to allow for the physical transportation of the third-country national out of the Member State. The use of the European Travel document for Return should be further promoted in negotiations and application of bilateral and EU readmission agreements and other arrangements with third countries. Administrative procedures with third countries aimed at preparing the removal operation (for example obtaining the necessary travel documents and authorisations) can be launched during the period for voluntary departure, without putting at risk the third-country national concerned (see also section 6).

To reduce the impact of potential abuses, in particular those related to unfounded, multiple and ‘last-minute’ asylum applications, as well as unfounded appeals against asylum or return-related decisions made with the sole purpose of delaying or frustrating the enforcement of return decisions, the Commission recommends that Member States take measures to organise proceedings for the examination of applications for international protection in an accelerated or, where appropriate, border procedures, in accordance with Directive 2013/32/EU of the European Parliament and of the Council (47) (the ‘Asylum Procedures Directive’).

Borderline between voluntary departure and removal: return is a very broad concept and covers the process of going back to a third country in compliance (voluntary or enforced) with an obligation to return. Removal is much narrower. It means enforcement of the obligation to return, namely the physical transportation out of the Member State. The ECJ has already highlighted in Case C-61/11, El Dridi, (paragraph 41) and Case C-329/11, Achughbabian, that the Return Directive foresees a ‘gradation of measures’ ranging from voluntary to enforced. In practice there are frequently cases which contain both elements of forced return (detention) and of voluntariness (subsequent voluntary travelling without need of physical force). Member States are encouraged to use — at all stages of the procedure — the least intrusive measures. If returnees who are subject of removal/detention change their attitude and show willingness to cooperate and to depart voluntarily, Member States are encouraged and entitled to show flexibility.

Enforcement of a return decision after the rejection of an application for international protection: in the judgment of Case C-601/15, J.N. (paragraphs 75-76, 80), the ECJ established that, following the rejection at first instance of an asylum application, the enforcement of a previously issued return decision must be resumed at the stage in which it was interrupted, and that return procedures should not start afresh: ‘[…] the principle that Directive 2008/115/EC must be effective requires that a procedure opened under that directive, in the context of which a return decision, accompanied […] by an entry ban, has been adopted, can be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance […]. In this regard it follows both from the duty of sincere cooperation of the Member States, deriving from Article 4(3) TEU and referred to in paragraph 56 of the judgment in El Dridi […], and from the requirements for effectiveness […], that the obligation imposed on the Member States by Article 8 of that directive, in the cases set out in Article 8(1), to carry out the removal must be fulfilled as soon as possible […]. That obligation would not be met if the removal were delayed because, following the rejection at first instance of the application for international protection, a procedure […] could not be resumed at the stage at which it was interrupted but had to start afresh.’

Imprisonment as a criminal law measure for illegal stay can never be ‘a necessary measure’ within the meaning of Article 8(1) of the Return Directive (see section 4). In line with Article 6 CFR on the right to liberty, interpreted in the light of Article 5 ECHR, deprivation of liberty in the return context is only permitted for the purpose of removal under Article 15 of the Return Directive — see judgment of the ECJ in Case C-329/11, Achughbabian (paragraph 37): ‘[…] the imposition and implementation of a sentence of imprisonment during the course of the return procedure provided for by Directive 2008/115/EC does not contribute to the realisation of the removal which that procedure pursues, namely the physical transportation of the person concerned outside the Member State concerned. Such a sentence does not therefore constitute a “measure” or a “coercive measure” within the meaning of Article 8 of Directive 2008/115/EC’.

Member States shall take due account of the state of health of third-country nationals when implementing the Return Directive in accordance with Article 5(c); moreover, when enforcing return decisions in application of Article 8(1) of theDirective, they shall act with due respect for the dignity and physical integrity of the third-country nationals. In full respect of the right to health, and taking into account that the Directive does not impose an obligation to conduct systematic medical checks or to issue a ‘fit-to-fly’ declaration in relation to all third-country nationals subject to removal, the Commission recommends that Member States take measures to prevent potential abuses related to false medical claims presented by the third-country nationals that would result in unduly preventing or suspending removal on medical grounds (see also section 12.4), for instance by ensuring that qualified medical personnel appointed by the relevant national authority is available to provide an independent and objective medical opinion on the specific case.

7.1.   Removal by air

Legal basis: Return Directive — Article 8(5); Common Guidelines on security provisions for joint removals by air annexed to Council Decision 2004/573/EC (48); Regulation (EU) 2016/1624 of the European Parliament and of the Council (49) — Article 28(3)

In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC.

According to the Return Directive, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC in the context of all removals by air, and not just — as originally foreseen by that Decision — in the context of joint removals.

Some parts of these Guidelines are by their nature designed to be taken into account for joint flights only, such as the rules related to the role and distribution of tasks of organising and participating Member States, hence they cannot be taken account in a purely national context. However, all other parts of the Guidelines (see the most relevant extracts in the box below) should be taken into account also in purely national removal operations.

COMMON GUIDELINES ON SECURITY PROVISIONS FOR JOINT REMOVALS BY AIR

(extracts)

1.   PRE-RETURN PHASE

1.1.2.   Medical condition and medical records

The organising Member State and each participating Member State shall ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for a safe removal by air. Medical records shall be provided for returnees with a known medical disposition or where medical treatment is required. These medical records shall include the results of medical examinations, a diagnosis and the specification of possibly needed medication to allow for necessary medical measures. […]

1.1.3.   Documentation

The organising Member State and each participating Member State shall ensure that for each returnee valid travel documents and other necessary additional documents, certificates or records are available. An authorised person shall keep the documentation until arrival in the country of destination […].

1.2.3.   Use of private-sector escorts

When a participating Member State makes use of private-sector escorts, the authorities of that Member State shall provide for at least one official representative on board the flight.

1.2.4.   Skills and training of escorts

Escorts assigned on board the joint flights shall have received prior special training in order to carry out these missions; they must be provided with the necessary medical support depending on the mission.

[…]

1.2.5.   Code of conduct for escorts

The escorts shall not be armed. They may wear civilian dress, which shall have a distinctive emblem for identification purposes. Other duly accredited accompanying staff shall also wear a distinctive emblem.

The members of the escort shall be strategically positioned in the aircraft in order to provide optimum safety. Moreover, they shall be seated with the returnees for whom they have responsibility.

1.2.6.   Arrangements regarding the number of escorts

The number of escorts shall be determined on a case-by-case basis following an analysis of the potential risks and following mutual consultation. It is recommended in most cases that they are at least equivalent to the number of returnees on board. A back-up unit shall be available for support, where necessary (e.g. in cases of long-distance destinations).

2.   PRE-DEPARTURE PHASE IN DEPARTURE OR STOPOVER AIRPORTS

2.1.   Transportation to the airport and stay in the airport

As regards transportation to and stay in the airport the following shall apply:

(a)

in principle, the escorts and the returnees should be at the airport at least three hours before departure;

(b)

returnees should be briefed regarding the enforcement of their removal and advised that it is in their interest to cooperate fully with the escorts. It should be made clear that any disruptive behaviour will not be tolerated and will not lead to the aborting of the removal operation;

[…]

2.2.   Check-in, boarding and security check before take-off

The arrangements as regards check-in, boarding and security checking before take-off shall be as follows:

(a)

the escorts of the Member State of the present location are responsible for checking in and for assisting in passing control areas;

(b)

all returnees shall undergo a meticulous security search before they board a joint flight. All objects that could be a threat to the safety of individuals and to the security of the joint flight shall be seized and placed in the luggage hold;

(c)

the returnee's luggage shall not be placed in the passengers cabin. All luggage placed in the hold shall undergo a security check and be labelled with the owner's name. Anything that is considered as dangerous according to the rules of the International Civil Aviation Organisation (ICAO) shall be removed from luggage;

(d)

money and valuable objects shall be placed in a transparent covering labelled with the owner's name. The returnees shall be informed about the procedure regarding objects and money that have been put aside;

[…]

3.   IN-FLIGHT PROCEDURE

[…]

3.2.   Use of coercive measures

Coercive measures shall be used as follows:

(a)

coercive measures shall be implemented with due respect to the individual rights of the returnees;

(b)

coercion may be used on individuals who refuse or resist removal. All coercive measures shall be proportional and shall not exceed reasonable force. The dignity and physical integrity of the returnee shall be maintained. As a consequence, in case of doubt, the removal operation including the implementation of legal coercion based on the resistance and dangerousness of the returnee, shall be stopped following the principle ‘no removal at all cost’;

(c)

any coercive measures should not compromise or threaten the ability of the returnee to breathe normally. In the event that coercive force is used, it shall be ensured that the chest of the returnee remains in upright position and that nothing affects his or her chest in order to maintain normal respiratory function;

(d)

the immobilisation of resisting returnees may be achieved by means of restraints that will not endanger their dignity and physical integrity;

(e)

the organising Member State and each participating Member State shall agree on a list of authorised restraints in advance of the removal operation. The use of sedatives to facilitate the removal is forbidden without prejudice to emergency measures to ensure flight security;

(f)

all escorts shall be informed and made aware of the authorised and forbidden restraints;

(g)

restrained returnees shall remain under constant surveillance throughout the flight;

(h)

the decision temporarily to remove a means of restraint shall be made by the head or deputy-head of the removal operation.

3.3.   Medical personnel and interpreters

The arrangements with regard to medical personnel and interpreters shall be as follows:

(a)

at least one medical doctor should be present on a joint flight;

(b)

the doctor shall have access to any relevant medical records of the returnees and shall be informed before departure about returnees with particular medical dispositions. Previously unknown medical dispositions, which are discovered immediately before departure and which may affect the enforcement of the removal, should be assessed with the responsible authorities;

(c)

only a doctor may, after a precise medical diagnosis has been made, administer medication to the returnees. Medicine required by a returnee during the course of the flight shall be held on board;

(d)

each returnee shall be able to address the doctor or the escorts directly, or via an interpreter in a language in which he or she can express him- or herself;

(e)

the organising Member States shall ensure that appropriate medical and language staff are available for the removal operation.

3.4.   Documentation and monitoring of removal operation

3.4.1.   Recording and observers from third parties

Any video- and/or audio-recording or monitoring by third-party observers on joint flights shall be subject to prior agreement between the organising Member State and the participating Member States.

[…]

5.   ARRIVAL PHASE

On arrival:

[…]

(c)

the organising Member State and each participating Member State shall hand over the returnees, for whom they are responsible, to the authorities of the country of destination, with their luggage and any items that were seized prior to boarding. The lead representatives of the organising and participating Member States will be responsible for handing over the returnees to the local authorities upon arrival. The escorts will not normally leave the aircraft;

(d)

where appropriate and feasible, the organising and participating Member States should invite consular staff, immigration liaison officers or advance parties of the Member States concerned to facilitate the handover of the returnees to the local authorities insofar as this is consistent with national practices and procedure;

(e)

the returnees shall be free of handcuffs or any other restraint when handed over to the local authorities;

(f)

the handover of returnees shall take place outside the aircraft (either at the bottom of the gangway or in adequate premises of the airport, as considered appropriate). As far as possible the local authorities shall be prevented from coming on board the aircraft;

(g)

the time spent at the airport of destination should be kept to a minimum;

(h)

it is the responsibility of the organising Member State and each participating Member State to have in place contingency arrangements for escorts and representatives (and returnees whose readmission has not been permitted) in the event that the departure of the aircraft is delayed following disembarkation of the returnees. These arrangements should include the provision of overnight accommodation, if necessary.

6.   FAILURE OF THE REMOVAL OPERATION

In the event that the authorities of the country of destination refuse entry to the territory, or the removal operation has to be aborted for other reasons, the organising Member State and each participating Member State shall take responsibility, at its own cost, for the return of the returnees, for whom they are responsible, to their respective territories.

Further clarification:

Escorting of returnees by airline security personnel or hired outside personnel is in principle compatible with Article 8 of the Return Directive. Member States have, however, an overall responsibility for the conduct of the removal operation (issuing of removal order and proportionate use of coercive measures/escorting). Section 1.2.3 of the above Guidelines provide: ‘When a Member State makes use of private-sector escorts, the authorities of that Member State shall provide for at least one official representative on board the flight’. It results that Member States have a general obligation to maintain a supervising role in all cases of ‘outsourcing’ of removal and that the use of airline security personnel for escorting purposes is not excluded, but must be authorised and flanked by at least one Member State's official.

Collecting return operations (third-country authorities sending a plane to EU for repatriating their nationals under their supervision): Member States have an overall responsibility for the conduct of the removal operation until the hand-over to the authorities of the country of destination has been completed and the aircraft has left EU soil. The respect of fundamental rights as well as a proportionate use of means of constraint in accordance with the common EU standards set out above must, however, be ensured during the whole removal operation. For supervision purposes, a Member State representative shall observe the phase of the removal which is carried out by the country of destination. In accordance with Article 28(3) of Regulation (EU) 2016/1624 on the European Border and Coast Guard (‘European Border and Coast Guard Regulation’), the European Border and Coast Guard Agency can provide assistance with the organisation of collecting return operations. During such operations, the participating Member States and the Agency shall ensure the respect of fundamental rights, of the principle of non-refoulement as well as the proportionate use of coercive measures. For this purpose, at least a representative of a Member State taking part to the operation and a forced-return monitor (either from a participating Member State or from the pool established according to Article 29 of the Regulation) must be present on board during the entire operation until arrival at the country of destination.

7.2.   Transit by air

Legal basis: Directive 2003/110/EC

Transit request for the purpose of removal by air: Annex to Directive 2003/110/EC

List of central authorities under Article 4(5) of Directive 2003/110/EC for receiving transit requests (available as EMN ad hoc query, return, 2015, at the EMN Europa website)

Directive 2003/110/EC defines detailed measures on assistance between the competent authorities at Member State airports of transit with regard to unescorted and escorted removals by air. It provides for a set of rules aimed at facilitating the transit of persons subject to removal in an airport of a Member State other than the Member State which has adopted and implemented the removal decision. To that end, it defines under which conditions the transit operations may take place and indicates what measures of assistance the requested Member State should provide. Requests for assistance shall be made by means of the standard form, attached to Directive 2003/110/EC. These requests shall be sent to the central authorities of Member States nominated for this purpose.

7.3.   Joint removal operations by air

Legal basis: Decision 2004/573/EC

List of national authorities responsible for organising and/or participating in joint flights under Article 3 of Decision 2004/573/EC (available as EMN ad hoc query, return, 2015, at the EMN Europa website).

Decision 2004/573/EC addresses in particular the identification of common and specific tasks of the authorities responsible for organising or participating in these operations. Common Guidelines on security provisions for joint removals by air are annexed to this Council Decision. According to Article 8(5) of the Return Directive, those Guidelines have to be taken into account for any removal by air, including purely national operations (see section 7.1).

7.4.   Return operations coordinated by the European Border and Coast Guard Agency

Legal basis: Regulation (EU) 2016/1624 — Article 28

One of the tasks of the European Border and Coast Guard Agency is to provide — subject to Union return policy and in particular subject to the Return Directive as key piece of the Union return legislation — assistance for organising and carrying out return operations of the Member States. The role of the Agency in return issues and its compliance with fundamental rights has been strengthened by the European Border and Coast Guard Regulation in 2016.

There is a clear added value in performing return operations coordinated by the Agency and Member States are encouraged to make ample use of this option.

Return operations coordinated by the Agency are subject to forced-return monitoring (see section 8).

8.   FORCED-RETURN MONITORING

Legal basis: Return Directive — Article 8(6)

List of national forced-return monitoring bodies: EMN ad hoc query, return, 2015, at the EMN Europa website; overview by the European Union Agency for Fundamental Rights (‘FRA’) of national forced-return monitoring bodies is available at: http://fra.europa.eu/en/theme/asylum-migration-borders/forced-return

Member States shall provide for an effective forced-return monitoring system.

Forced-return monitoring is an important tool which may serve the interest of both the returnee and the enforcing authorities as an inbuilt control mechanism for national day-to-day return practices. Effective monitoring may help to de-escalate. It allows quickly identifying and correcting possible shortcomings. It also protects enforcing authorities — who may sometimes be subject of unjustified criticism from media or NGOs — by providing unbiased and neutral reporting.

The Return Directive does not prescribe in detail how national forced-return monitoring systems should look like. It leaves wide margin of discretion to Member States. Based on the wording of the Directive and its context, some orientation can, however, be given:

(1)

forced-return monitoring should be understood as covering all activities undertaken by Member States in the respect of removal — from the preparation of departure, until reception in the country of return or in the case of failed removal until return to the point of departure. It does not cover post-return monitoring, i.e. the period following reception of the returnee in a third country;

(2)

monitoring systems should include involvement of organisations/bodies different and independent from the authorities enforcing return (‘nemo monitor in res sua’);

(3)

public bodies, such as a national Ombudsman or an independent general inspection body, may act as monitor. However, it seems problematic to assign a monitoring role to a subsection of the same administration which also carries out return/removals;

(4)

the mere existence of judicial remedies in individual cases or national systems of the supervision of the efficiency of national return policies cannot be considered as a valid application of Article 8(6) of the Return Directive;

(5)

there is no automatic obligation on the Member States to finance all costs incurred by the monitor (such as staff costs), but Member States are obliged that — overall — a forced return monitoring system is up and running (effet utile);

(6)

Article 8(6) of the Return Directive does not imply an obligation to monitor each single removal operation. A monitoring system based on spot checks and monitoring of random samples may be considered sufficient as long as the monitoring intensity is sufficiently close to guarantee overall efficiency of monitoring;

(7)

Article 8(6) of the Return Directive does not imply a subjective right of a returnee to be monitored.

Monitoring of return operations coordinated by the European Border and Coast Guard Agency:

Article 28(6) of the European Border and Coast Guard Regulation establishes that ‘Every return operation shall be monitored in accordance with Article 8(6) of Directive 2008/115/EC […] on the basis of objective and transparent criteria and shall cover the whole return operation from the pre-departure phase until the hand-over of the returnees in the third country of return’. It means that every forced-return operation that is coordinated by the Agency and involves technical and operational reinforcement provided by one or more Member States shall be subject to monitoring in accordance with the national rules and modalities transposing Article 8(6) of the Return Directive.

Without prejudice to the reporting obligations provided for by national law, forced-return monitors have to report after each operation to the Agency's Executive Director, to the Fundamental Rights Officer and to the competent national authorities of all the Member States taking part in the operation.

9.   POSTPONEMENT OF REMOVAL

Legal basis: Return Directive — Article 9

1.

Member States shall postpone removal:

(a)

when it would violate the principle of non-refoulement; or

(b)

for as long as a suspensory effect is granted in accordance with Article 13(2).

2.

Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account:

(a)

the third-country national's physical state or mental capacity;

(b)

technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.

3.

If a removal is postponed as provided for in paragraphs 1 and 2, the obligations set out in Article 7(3) may be imposed on the third-country national concerned.

The Return Directive imposes two absolute bans: Member States are not allowed to remove a person if this would violate the principle of non-refoulement, and they are also not allowed to carry out removal for as long as suspensory effect has been granted to a pending appeal.

In other cases Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. The catalogue of possible reasons is open and allows Member States to react flexibly to any newly arising or newly discovered circumstances justifying postponement of removal. The concrete examples listed in the Return Directive (physical or mental state of the person concerned, technical reasons, such as lack of availability of appropriate transport facilities) are indicative examples. Member States may provide also for further cases in their national implementing legislation and/or administrative practice.

Further clarification:

Difference between period for voluntary departure and postponement of removal: Article 7 of the Return Directive (voluntary departure) provides for a ‘period of grace’ in order to allow for an orderly and well prepared departure; it only relates to those returnees who are expected to comply voluntarily with a return decision. Article 9 of that Directive (postponement of removal) relates to those cases in which the obligation to return must be enforced by the State because voluntary departure is not possible or was not granted.

Legal status pending postponed removal: pending suspended removal the returnee benefits from the safeguards listed in Article 14 of the Return Directive (written confirmation of postponed obligation to return and some basic safeguards, such as access to emergency healthcare and necessary treatment of the illness, and family unity — see section 13 of this Handbook). The returnee is, however, not considered to be legally staying in a Member State, unless a Member State decides — in application of Article 6(4) of the Return Directive — to grant a permit or a right to legal stay to the third-country national.

Designation to reside at a specific place pending postponed removal: Article 9(3) contains an express reference to the possibilities listed in Article 7(3) to prevent absconding (see section 6.2), including the possibility to impose an obligation to stay at a certain place.

10.   RETURN OF UNACCOMPANIED MINORS

The Return Directive also applies to minors, including unaccompanied minors and provides for specific safeguards that need to be respected by the Member States. Such safeguards therefore apply to any individual under the age of 18 (i.e. a minor) who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her and for as long as the minor is not effectively taken into the care of such person (including minor who was left unaccompanied after entry into the territory of the Member States). In some Member States adolescents below the age of 18 are authorised to act in their own right in return (and asylum) procedures; however, the safeguards of the Return Directive are binding on Member States in relation to all minors up to the age of 18.

Durable solutions are crucial to establish normality and stability for all minors in the long term. Return is one of the options to be examined when identifying a durable solution for unaccompanied minors and any Member State's action must take into account as key consideration the best interests of the child. Before deciding to return an unaccompanied minor, and in accordance with Article 12(2) of the Convention on the Rights of the Child (50), the minors concerned must be heard, either directly or through a representative or an appropriate body, and an assessment of the best interests of the child shall always be carried out on an individual basis, including on the particular needs, on the current situation in the family and on the situation and reception conditions in the country of return. Such assessment should systematically look at whether return to the country of origin, including reunification with the family, is in the minor's best interests.

The assessment should be carried out by the competent authorities on the basis of a multidisciplinary approach, involving the minor's appointed guardian and/or the competent child protection authority. Member States should also carry out a periodic re-assessment of the best interests of the child in the light of the developments of the individual case.

Member States are encouraged to consider the interpretative and operational guidance provided by the joint UNHCR-Unicef guidelines on the determination of the best interests of the child (51), the General Comment No 14 of the UN Committee on the rights of the child to have his or her best interests taken as a primary consideration (52), the UNHCR guidelines on determining the Best Interests of the Child (53) and the Field Handbook for the Implementation of UNHCR Best Interest Determination Guidelines (54).

The minors' right to be heard in return proceedings involving or affecting them is an integral part of any best interests assessment (see Article 12 of the Convention on the Rights of the Child) and must be respected as a fundamental right recognised as a general principle of EU law, enshrined in the CFR. It includes giving due weight to the minors' views, taking into account their age and maturity and any communication difficulties they may have in order to make this participation meaningful, and the respect for the minor's right to express his or her views freely (for further guidance, see section 12.1).

Definition of unaccompanied minor: the Return Directive does not define the term unaccompanied minor. Taking into account that unaccompanied minors in many cases are or have been asylum seekers, it is recommended to use the definition provided in the most recent asylum directives, notably Article 2(e) of the recast Reception Conditions Directive: ‘a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States’.

Refraining from issuing return decisions to unaccompanied minors: Article 6(4) of the Return Directive expressly allows Member States to grant at any moment an authorisation or right to stay in accordance with national law to illegally staying third-country nationals. This general rule also applies to minors. Hence, Member States that do not return/remove third-country minors staying illegally on their territory, or are restrained from removing the unaccompanied minor based on an assessment of the best interests of the child, are free to grant an authorisation or right to stay (for example a temporary permit to stay until the age of 18).

Article 6(1) of the Return Directive obliges Member State to say either ‘A’ (grant a permit or a legal right to stay) or ‘B’ (carry out return procedures) (see section 5). Member States should therefore establish clear rules on the legal status of unaccompanied minors, allowing either to issue return decisions and carry out returns, or to grant them a right to stay in accordance with national law. Member States should seek to ensure the availability of status determination procedures for those unaccompanied minors who are not returned. This is a straightforward approach, aimed at reducing ‘grey areas’ and improving legal certainty for all actors involved. In the light of the above, in order to be compatible with the Return Directive, the situation of unaccompanied minors in Member States that, following an assessment of the best interests of the child, do not return or remove third-country minors, should be framed in legal terms as either granting a (temporary) permit or a right to stay (for example until they reach the age of 18) in application of Article 6(4) of the Directive, or issuing a return decision and postponing the removal in accordance with Articles 6 and 9 of the Return Directive.

10.1.   Assistance by appropriate bodies

Legal basis: Return Directive — Article 10(1)

Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child.

Historic reminder/explanation: Article 10(1) was not contained in the Commission proposal. It was inserted in the text during the negotiations and it is directly inspired by Guideline 2(5) of the Council of Europe ‘Twenty Guidelines on forced return’ (55), which provides that ‘Before deciding to issue a removal order in respect of a separated child, assistance — in particular legal assistance — should be granted with due consideration given to the best interests of the child’.

Nature of the ‘appropriate bodies’: the ‘appropriate body’ should be separated from the enforcing authority and could be a governmental body (possibly a separate service if within the same ministry), a non-governmental body, or a combination of both, providing for multidisciplinary cooperation between government-supported and non-governmental guardian systems and/or child-protection bodies. Bodies responsible for the care and protection of children shall comply with the standards established in the areas of safety, health, suitability of staff and competent supervision. The different roles and responsibilities of the actors must be clear and transparent in particular for the unaccompanied minor to allow for his/her active involvement and effective participation in all matters concerning him/her.

Nature of the ‘assistance’: assistance should cover legal assistance but must not be limited to it. Other aspects expressly mentioned by the Return Directive — such as provision of necessary medical assistance and healthcare, contact with family, access to basic education —, to support the realisation of the rights of the child as set out in the UN Convention on the rights of the child should also be addressed. Specific emphasis should be given to the need to discuss with the minor in advance and throughout any processes and procedures, as well as all decisions affecting him/her. Minors should be informed in a child-sensitive and age- and context- appropriate manner on their rights, on procedures and on services available for their protection.

Timing of the ‘assistance’: the assistance by appropriate bodies should start at the earliest point in time, and it shall start before issuing a return decision. That implies a timely age assessment based on the benefit of the doubt. Assistance should be a continuous and stable process, including during the return phase. It may also cover the post-return phase, to ensure adequate follow-up of return. If needed, a transfer of guardianship from the Member State to the country of return in line with Article 10(2) of the Return Directive should be achieved.

Age assessment: the Return Directive contains no provisions on age assessment. Based on a systematic interpretation of the Union immigration and asylum acquis, the Commission recommends to refer to the provisions of Article 25(5) of the Asylum Procedures Directive, as well as to take into account related documents developed for instance by the European Asylum Support Office (56).

Continuity of assistance in asylum and return procedures: Although the legal basis between the guardianship provided for to asylum seekers and the ‘assistance’ required for unaccompanied minors/children in the return process differ, close links between the requirements laid down in the asylum acquis and in the Return Directive exist and continuity of assistance in asylum and return procedures should be sought.

Provision of mere guardianship is not sufficient to comply with the obligation to provide assistance to minors, since ‘assistance by appropriate bodies’ means more than mere guardianship.

10.2.   Return to a family member, a nominated guardian or adequate reception facilities

Legal basis: Return Directive — Article 10(2)

Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to:

a member of his or her family,

a nominated guardian, or

adequate reception facilities in the State of return.

Among the options provided for by Article 10(2) of the Return Directive, it is recommended that the return to family members should be the preferred one, unless this is manifestly not in the child's best interests. Member States should therefore undertake efforts to establish the identity and nationality of the unaccompanied minor and to trace family members. Return to a guardian or an adequate reception facility can be an acceptable alternative under certain conditions.

The Commission recommends that Member States put in place appropriate reintegration measures targeting unaccompanied minors who return to their country of origin, and ensure prompt access to such measures both before departure and after arrival in the third country of return.

Further clarification:

Family tracing: Member States should launch procedures for tracing the parents or family members of unaccompanied minors as soon as possible, involving the appointed guardian and/or a person responsible for child protection. To facilitate family tracing as well as for identifying a guardian or an adequate facility in view of return, the competent national authorities should take measures to work in cooperation with consular services, liaison officers, child protection bodies, international organisations and NGOs in the country of return, making full use of existing cross-border cooperation channels.

Voluntary departure of minors: in principle, Article 10(2) only applies to situations where the minor is removed and not situations where the minor is leaving the Member State voluntarily. Taking into account the Member States' obligation deriving from the requirement to take into due account the best interests of the child, it is recommended to also assess the situation in the family and the situation and reception conditions in the country of return in cases of voluntary departure.

The adequacy of reception facilities in the country of return needs to be assessed on a case-by-case basis, taking into account the individual circumstances and the age of the returned minor. A mere reception by the border police in the country of return without any necessary follow-up measures or flanking measures cannot be considered as ‘adequate reception’. Member State should pay particular attention to availability of appropriate housing, access to healthcare and education in the country of return. Member States shall respect Article 20 of the UN Convention on the Rights of the Child and are encouraged to meet the UN Guidelines for the alternative care of children (57).

11.   ENTRY BANS

Legal basis: Return Directive — Article 3(6) and Article 11

‘Entry ban’ means an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision.

Return decisions shall be accompanied by an entry ban:

(a)

if no period for voluntary departure has been granted; or

(b)

if the obligation to return has not been complied with.

In other cases return decisions may be accompanied by an entry ban.

The length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed five years. It may however exceed five years if the third-country national represents a serious threat to public policy, public security or national security.

The return-related entry bans foreseen in the Return Directive are intended to have preventive effects and to foster the credibility of Union return policy by sending a clear message that those who disregard migration rules in EU Member States will not be allowed to re-enter any EU Member State for a specified period of time.

The Directive obliges Member States to issue an entry ban in two ‘qualified’ cases: (i) no period for voluntary departure granted; and (ii) obligation to return not complied with.

In all other cases, return decisions may be accompanied by an entry ban.

The length of the entry ban must be determined with due regard to all relevant circumstances of the individual case. In principle it should not exceed five years. Only in cases of serious threat to public policy, public security or national security, the entry ban may be issued for a longer period.

The rules on return-related entry bans under the Return Directive leave unaffected entry bans issued for other purposes not related to migration, such as entry bans to third-country nationals who have committed serious criminal offences or for whom there is a clear indication that there is an intention to commit such an offence (see Article 24(2) of Regulation (EC) No 1987/2006 of the European Parliament and of the Council (58) (the ‘SIS II Regulation’)) or entry bans constituting a restrictive measure adopted in accordance with Chapter 2 of Title V TEU, including measures implementing travel bans issued by the United Nations Security Council.

11.1.   EU-wide effect

An entry ban prohibits entry into the territory of all the Member States: the wording of recital 14 of the Return Directive and a systematic comparison of all the linguistic versions of the Directive (in particular the English and French texts) make clear that an entry ban prohibits entry and stay on the territory of all Member States. The Danish version, which uses the singular (‘ophold på en medlemsstats’), contains an evident translation mistake. The EU-wide effect of an entry ban is one of the key European added values of the Directive. The EU-wide effect of an entry ban must be clearly stated in the entry ban decision issued to a third-country national.

Entry bans are binding on all Member States bound by the Return Directive, that is to say all Member States (except the United Kingdom and Ireland) plus the Schengen Associated countries (Switzerland, Norway, Iceland and Liechtenstein).

Informing other Member States about issued entry bans: it is essential to inform other Member States about all entry bans which have been issued. Entering an entry ban alert into the SIS in application of Article 24(3) of the SIS II Regulation is the main — but not the exclusive — means for informing other Member States about the existence of an entry ban and for ensuring their successful enforcement. Member States should therefore ensure that entry ban alerts are systematically entered in the SIS. As regards those Member States which have no access to SIS, information exchange may be achieved through other channels (for example. bilateral contacts).

Purely national entry bans: it is not compatible with the Return Directive to issue purely national migration-related entry bans. National legislation must foresee that entry bans issued in connection with return decisions prohibit entry and stay in all Member States, for instance by setting an obligation to systematically enter all such entry bans into the SIS. However, in the case of a third-country national subject of an entry ban issued by Member State A who has a residence permit issued by Member State B, where Member State B does not want to revoke this permit, and following an Article 25 SIC consultation referred to in Article 11(4) of the Return Directive, Member State A shall withdraw the EU-wide entry ban, but may put the third-country national on its national list of alerts under Article 25(2) last sentence SIC (lex specialis) (see also section 11.8).

11.2.   Use of SIS II

Registration of entry bans in SIS: according to currently applicable legislation, Member States may register alerts related to entry bans issued in accordance with the Return Directive in the SIS, but are not obliged to do so. However, in order to give full effect to the European dimension of entry bans issued under the Return Directive, Member States should systematically do so.

Relation between the 3-year review of alerts entered into the SIS (under Article 112 SIC and Article 29 SIS II Regulation) and the length of the entry ban fixed under the Return Directive: the review of alerts entered into the SIS is a procedural requirement aimed at making sure that alerts are only kept for the time required to achieve the purpose for which they were entered. It does not impact the substantive decision of the Member States to determine the length of an entry ban in accordance with the provisions of the Return Directive. If at the moment of the 3-year review an entry ban imposed under the Return Directive is still in force (for example the ban was imposed for a period of 5 years and was not withdrawn in the meantime), Member States may maintain the alert in the SIS for the remaining two-year period if the alert is still necessary in view of the applicable assessment criteria, notably Article 11 of the Return Directive read in conjunction with Article 112(4) SIC or Article 29(4) of the SIS II Regulation.

11.3.   Procedural issues

Issuance of entry bans upon departure at the border in an in absentia procedure (for example in cases of visa overstayers presenting themselves to the border control at the airport briefly before departure): nothing prevents Member States from launching a return procedure when acquiring knowledge about the visa overstay and to issue a return decision (see section 5.1) accompanied by an entry ban in an in absentia procedure if:

(1)

national administrative law provides for the possibility of in absentia procedures; and

(2)

those national procedures are in compliance with general principles of Union law and with fundamental rights as enshrined in the CFR, and in particular the right to be heard and the right to an effective remedy and a fair trial.

Issuance of an entry ban to returnees who have not complied with the obligation to return within the period for voluntary departure at the moment of departure: an entry ban shall be imposed at a later stage (for instance upon departure) as an ancillary and subsequent element of an already issued return decision if the returnee has not complied with the obligation to return, within the period for voluntary departure.

Presence on Member State territory: illegal stay is an essential prerequisite for issuing a return decision and an accompanying entry ban. A Member State cannot issue a return decision and an accompanying entry ban to persons who are not staying on its territory. In a situation in which a person has absconded (for example after receiving a negative decision on an asylum application) but can still be assumed to be present on the territory of the Member State concerned, a return decision (including an entry ban) may be adopted in an in absentia procedure under national law.

Illegal stay in the past: Member States cannot issue a return decision and an accompanying entry ban in accordance with the Return Directive to persons who are not present on their territory, including third-country nationals who had previously (in the past) stayed illegally and who returned to a third country before their illegal stay was detected. If such persons re-enter a Member State and measures under the Return Directive (return decision, entry ban) are adopted, the previous illegal stay(s) may be taken into account as an aggravating circumstance when determining the length of the entry ban. Previous illegal stay in other Member States may also be taken into account as an aggravating circumstance when determining the length of the entry ban.

11.4.   Reasons for issuing entry bans

The Return Directive obliges Member States to issue an entry ban in two ‘qualified’ cases:

(1)

no period for voluntary departure has been granted; or

(2)

the obligation to return has not been complied with.

In all other cases (all return decisions adopted under the Return Directive which do not fall under the two ‘qualified’ cases) return decisions may be accompanied by an entry ban. This implies that an entry ban may also be foreseen even if the person departed voluntarily. However Member States enjoy discretion in this respect and are encouraged to exercise this discretion in a way which encourages voluntary departure.

11.5.   Length of entry bans

The length of the entry ban shall be determined in accordance with national law transposing the Return Directive with due regard to all relevant circumstances of the individual case. When determining the length of the entry ban, particular account should be taken of aggravating or mitigating circumstances known to the issuing authority, such as whether:

the third-country national has already been the subject in the past of a return decision or removal order,

the third-country national has already received in the past voluntary departure and/or reintegration assistance,

the third-country national has entered without authorisation the territory of a Member State while an entry ban was still in force,

the third-country national has cooperated or has shown unwillingness to cooperate in the return procedure,

the third-country national has shown willingness to depart voluntarily.

As a general rule, the length of the entry ban must not exceed 5 years. When determining the concrete length of the entry ban, Member States are bound to carry out an individual examination of all relevant circumstances and to respect the principle of proportionality. A Member State might envisage varying timeframes for typical case categories, such as 3 years as a general standard rule, 5 years in aggravating circumstances (for instance repeated infringements of migration law) and 1 year in mitigating circumstances (for example infringements committed out of negligence only) as general guidance for its administration, but it must be assured that each case will be assessed individually in accordance with the principle of proportionality. Member States may lay down in their national laws or administrative regulations the general criteria which will be taken into account for individually determining the length of the entry ban in accordance with Article 11(2) of the Return Directive.

Serious threat to public policy, public security or national security: in cases of serious threat to public policy, public security or national security, entry bans may be issued for a period longer than 5 years. Factors which may be taken into account by Member States for determining such threat may be criminal offences as well as serious administrative offences (for example repeated use of false identity documents, repeated and deliberate violations of migration law). None of these factors can, however, be considered as constituting automatically and per se a public order threat: Member States are always bound to carry out an individual examination of all relevant circumstances and respect the principle of proportionality.

The Return Directive gives no definition as to the exact meaning of this term and the ECJ case law on the use of this term in other migration directives and in the free movement context does not directly apply in the Return Directive context since the issues at stake and the context are different. Nevertheless some considerations contained in ECJ case-law (in particular on horizontal concepts such as proportionality and effet utile of directives) may provide some steer: in Section 3 of the communication on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States  (59), the Commission provided for detailed guidance relating to the interpretation of the notion of public policy and public security in the free movement context. Moreover, comparative information on the interpretations given to this term by Member States in the migration context may be taken from the results of the EMN ad hoc query (140) on the understanding of the notions of ‘public policy’ and ‘public security’. In paragraph 48 of its judgment in Case C-554/13, Zh. and O., which dealt with the notion of ‘public policy’ in the Return Directive's context (see section 6.3), the ECJ expressly confirmed that analogies may be made with its case-law on Directive 2004/38/EC (judgment of the ECJ in Case C-430/10, Gaydarov  (60), paragraph 32).

The length of public order entry bans: the length of public order entry bans needs to be individually determined, taking into account the seriousness of the offences committed by the third-country nationals, the linked risks to public policy, public security or national security and the individual situation of the persons concerned. The principle of proportionality must be respected in any case. A systematic issuing of life-long entry bans in all public order cases, without taking into account the circumstances of the individual case (for example gravity of the offences, risks) is contrary to the Directive. A Member State might envisage varying timeframes for typical case categories, such as 10 years as a generalstandard rule for public order cases and 20 years in particularly serious circumstances. Member States should provide for the possibility to review the entry ban decision, in particular the existence of the conditions justifying it, either ex officio or following an application by the person concerned.

Further clarification:

 

No unlimited entry bans: the length of the entry ban is a key element of the entry ban decision. It must be determined ex officio in advance in each individual case. The ECJ expressly confirmed this in its judgment of Case C-297/12, Filev and Osmani (paragraphs 27 and 34): ‘It must be noted that it clearly follows from the terms “[t]he length of the entry ban shall be determined” that Member States are under an obligation to limit the effects in time of any entry ban in principle to a maximum of five years independently of an application made for that purpose by the relevant third-country national. […] Article 11(2) of Directive 2008/115/EC must be interpreted as precluding a provision of national law […] which makes the limitation of the length of an entry ban subject to the making by the third-country national concerned of an application seeking to obtain the benefit of such a limit’.

 

The moment at which the clock starts ticking: the Return Directive does not expressly lay down the starting point from which the period of application of the entry ban is to be calculated. However, the ECJ in Case C-225/16, Ouhrami  (61) provided clarity on this issue.

 

The ECJ clarified that the determination of the starting point for an entry ban cannot be left to the discretion of each Member State, as this would undermine the objective of the Return Directive and the purpose of the entry bans. The ECJ concluded that ‘it thus follows from the wording, general scheme and objective of Directive 2008/115/EC that the period of application of the entry ban does not begin to run until the date on which the person concerned has actually left the territory of the Member States’ (paragraph 53). Indeed, if an entry ban were to apply before the actual departure of the third-country national, its duration would be unduly reduced.

 

The ECJ therefore decided that ‘the starting point of the duration of an entry ban […] must be calculated from the date on which the person concerned actually left the territory of the Member States’ (paragraph 58).

 

Member States should put in place means to confirm and verify the actual date of departure of third-country nationals (see sections 6.4 and 6.6) to ensure that entry bans start applying at the moment in which they actually leave the territory of the Member States.

11.6.   Withdrawal, shortening and suspension of entry bans

Legal basis: Return Directive — Article 11(3)

Subparagraph 1: Member States shall consider withdrawing or suspending an entry ban where a third-country national who is the subject of an entry ban issued in accordance with paragraph 1, second subparagraph, can demonstrate that he or she has left the territory of a Member State in full compliance with a return decision.

The possibility to suspend or withdraw an entry ban in those cases in which a returnee has left the territory of a Member State in full compliance with a return decision (notably within the granted period for voluntary departure) should be used as an incentive to encourage voluntary departure. Member States shall provide for a possibility in their national legislation and administrative practice to apply for withdrawal or suspension of an entry ban in these circumstances. An effort should be made to make such procedures easily accessible for the returnee and practically operational. Different possibilities exist for allowing the returnee to provide evidence as regards his/her departure from EU territory, such as: an exit stamp in the returnee's passport, data in national border data systems or reporting back of the returnee at a consular representation of a Member State in a third country.

Shortening of entry bans: Member States are also free to shorten an existing entry ban in the circumstances addressed by Article 11(3) of the Return Directive. The possibility for Member States to withdraw an entry ban under Article 11(3) can be interpreted as covering also a partial withdrawal (i.e. shortening) of an entry ban.

Subparagraph 2: Victims of trafficking in human beings who have been granted a residence permit pursuant to Directive 2004/81/EC shall not be subject of an entry ban without prejudice to paragraph 1, first subparagraph, point (b), and provided that the third-country national concerned does not represent a threat to public policy, public security or national security.

Victims of trafficking who had been previously granted a residence permit in accordance with Directive 2004/81/EC should not receive an entry ban, unless the person concerned did not comply with an obligation to return within a period for voluntary departure or if the person concerned represents a threat to public policy. This rule only applies to periods of illegal stay immediately following a legal stay covered by Directive 2004/81/EC and it does not create a life-long exemption for previous holders of such permits.

Subparagraph 3: Member States may refrain from issuing, withdraw or suspend an entry ban in individual cases for humanitarian reasons.

Member States are free not to issue entry bans in individual cases, notably in the compulsory cases foreseen by Article 11(1)(a) and (b) of the Return Directive, only for humanitarian reasons; such reasons need to be determined at national level. Member States are also allowed to withdraw or suspend existing entry bans for humanitarian reasons.

This optional clause gives Member States the possibility to make use of it in accordance with their national legislation and administrative practice.

Subparagraph 4: Member States may withdraw or suspend an entry ban in individual cases or certain categories of cases for other reasons.

Member States are free to withdraw or suspend existing entry bans for reasons other than humanitarian reasons, to be determined at national level.

In cases of humanitarian catastrophes (such as earthquakes, other natural disasters or armed conflicts) in third countries which may lead to a mass influx of displaced persons, formal procedures for withdrawal of entry bans in individual cases may take too long and are not feasible. Therefore the possibility exists to provide for a horizontal suspension or withdrawal of existing entry bans related to the concerned groups of persons.

A need to withdraw entry bans validly issued under the Return Directive may also arise in relation to third-country nationals who could later establish that they are enjoying the right of free movement under Union law, for example by becoming members of the family of EU/EEA/CH nationals falling under Article 21 TFEU or Directive 2004/38/EC.

11.7.   Sanctions for non-respect of entry ban

Non-respect of an entry ban should be taken into consideration by Member States when considering the length of a further entry ban. In this context, recital 14 of the Return Directive expressly provides that ‘The length of the entry ban should be determined with due regard to all relevant circumstances of an individual case and should not normally exceed five years. In this context, particular account should be taken of the fact that the third-country national concerned has already been the subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban’.

The Return Directive allows Member States to provide for further sanctions under national administrative law (for instance, a fine), subject to the effet utile of the Directive and the relevant case-law of the ECJ in this regard. When doing so, Member States should make no difference between entry bans issued by their own national authorities and by those issued by authorities of other Member States, as this would undermine the harmonised concept of an EU-wide entry ban established by the Return Directive.

Member States can adopt criminal law sanctions against illegally staying third-country nationals who did not comply with an valid entry ban following their return (judgment of the ECJ in Case C-290/14, Celaj, see section 4).

Article 11(5) of the Return Directive clarifies that the provisions on return-related entry bans apply without prejudice to the right to international protection under EU asylum acquis: this implies that previously issued entry bans under the Return Directive cannot justify the return or penalisation of third-country nationals authorised to enter or stay in the EU as asylum seeker or as beneficiary of international protection — see judgment of the ECJ in Case C-290/14, Celaj (paragraph 32). Such entry bans should be suspended (pending ongoing asylum procedures) or withdrawn (once international protection has been granted).

11.8.   Consultation between Member States

Legal basis: Return Directive — Article 11(4); Schengen Implementing Convention — Article 25

Where a Member State is considering issuing a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban and shall take account of its interests in accordance with Article 25 of the Convention implementing the Schengen Agreement.

Article 25 Schengen Implementing Convention provides that:

1.

Where a Member State considers issuing a residence permit, it shall systematically carry out a search in the Schengen Information System. Where a Member State considers issuing a residence permit to an alien for whom an alert has been issued for the purposes of refusing entry, it shall first consult the Member State issuing the alert and shall take account of its interests; the residence permit shall be issued for substantive reasons only, notably on humanitarian grounds or by reason of international commitments.

Where a residence permit is issued, the Member State issuing the alert shall withdraw the alert but may put the alien concerned on its national list of alerts.

1a.

Prior to issuing an alert for the purposes of refusing entry within the meaning of Article 96, the Member States shall check their national records of long-stay visas or residence permits issued.

2.

Where it emerges that an alert for the purposes of refusing entry has been issued for an alien who holds a valid residence permit issued by one of the Contracting Parties, the Contracting Party issuing the alert shall consult the Party which issued the residence permit in order to determine whether there are sufficient reasons for withdrawing the residence permit.

If the residence permit is not withdrawn, the Contracting Party issuing the alert shall withdraw the alert but may nevertheless put the alien in question on its national list of alerts.

3.

Paragraphs 1 and 2 shall apply also to long-stay visas.

Article 25 SIC is a directly applicable provision and can be applied by Member States without transposing national legislation.

Only the Member State issuing the entry ban (Member State A) can lift the entry ban. If another Member State (Member State B) decides to issue a residence permit to the same person or not to withdrawn an existing one (after having carried out consultation with the Member State which had issued the entry ban), Member State A is obliged to withdraw the alert (Article 25(2) SIC), although it may put the third-country national on its national list of alerts. The reasons underlying an existing entry ban issued by Member State A, as well as the interests of this Member State, must be considered and taken into account by Member State B before issuing a residence permit or deciding not to withdraw it (for instance for family reunification purposes). In order to allow Member State B to properly take into account the underlying reasons for the entry ban, it is essential that Member State A provides the relevant information to Member State B in due time.

Those Member States which do not yet fully apply Schengen rules and therefore cannot (yet) directly apply Article 25 SIC, should nevertheless follow the spirit of Article 11(4) of the Return Directive and contact — if they become aware (through whatever source of information including information from the applicant) that a person is subject of an entry ban issued by another Member State — the authorities which issued the entry ban. Before issuing a residence permit to the person, the Member State should seek to ‘take account of the interest’ of the Member State which issued the entry ban.

11.9.   ‘Historic’ entry bans

‘Historic’ entry bans issued before 24 December 2010 have to be adapted in line with the standards fixed in Article 11 of the Return Directive — i.e. maximum of 5 year, individual assessment, obligation to withdraw/consider withdrawing in specific circumstances — if they develop effects for the period after 24 December 2010 and if they are not yet in line with the substantive safeguards of Article 11.

Adaptation should take place either upon application of the concerned person at any moment or ex officio at the earliest possible moment, and in any case not later than at the occasion of the regular (3-year) review of entry bans foreseen for SIS alerts.

In the judgment of Case C-297/12, Filev and Osmani (paragraphs 39-41 and 44), the ECJ expressly clarified: ‘In that regard, it is important to note from the outset that that directive does not include a provision providing for transitional arrangements in relation to entry-ban decisions taken before it became applicable. None the less, it follows from the Court's settled case-law that new rules apply immediately, except in the event of a derogation, to the future effects of a situation which arose under the old rules […]. It follows that Directive 2008/115/EC is applicable to those effects which occur after the date of its applicability in the Member State concerned of entry-ban decisions taken under national rules which were applicable before that date. […] It follows that Article 11(2) of Directive 2008/115/EC precludes a continuation of the effects of entry bans of unlimited length made before the date on which Directive 2008/115/EC became applicable, […] beyond the maximum length of entry ban laid down by that provision, except where those entry bans were made against third-country nationals constituting a serious threat to public order, public security or national security’.

12.   PROCEDURAL SAFEGUARDS

12.1.   Right to good administration and right to be heard

The right to good administration is a fundamental right recognised as a general principle of EU law and enshrined in the CFR, which forms an integral part of the EU legal order. This right includes the right of every person to be heard before any individual measure which would affect him or her adversely or which significantly affect his or her interests is taken, which is also inherent in respect for the rights of the defence, another general principle of EU law.

In the judgments of Cases C-383/13, G & R  (62), and C-249/13, Boudjlida  (63), the ECJ provided important clarification on the right to be heard in relation to return and detention decisions. These judgements imply that Member States must always comply with the safeguards below when taking decisions related to return (i.e. return decision, entry-ban decisions, removal decisions, detention order) even though this may not be expressly specified in the relevant articles of the Return Directive:

(1)

the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

(2)

the right of every person to have access to his or her file, to analyse all the evidence relied on against him or her which serves to justify a decision by the competent national authority, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

(3)

the right of every person to have recourse to a legal adviser prior to the adoption of a return decision, provided that the exercise of that right does not affect the due progress of the return procedure and does not undermine the effective implementation of the Directive; this does not entail an obligation upon Member States to bear the costs of that assistance;

(4)

the obligation of the administration to pay due attention to the observations by the person concerned and examine carefully and impartially all the relevant aspects of the individual case;

(5)

the obligation of the administration to give reasons for its decisions.

Member States enjoy a significant margin of discretion on how to grant the right to be heard in practice: the non-respect of this right renders a decision invalid only insofar as the outcome of the procedure would have been different if the right was respected (judgment of the ECJ in Case C-383/13, G & R, paragraph 38).

Moreover, a Member State authority may fail to hear a third-country national specifically on the subject of a return decision where, after that authority has determined that the third-country national is staying illegally in the national territory within a preceding asylum procedure which fully respected that person's right to be heard, it is contemplating the adoption of a return decision (judgment of the ECJ in Case C-166/13, Mukarubega  (64)). The logic set out in Mukarubega is as follows: ‘The right to be heard before the adoption of a return decision cannot be used in order to re-open indefinitely the administrative procedure, for the reason that the balance between the fundamental right of the person concerned to be heard before the adoption of a decision adversely affecting that person and the obligation of the Member States to combat illegal immigration must be maintained’.

This logic can also be applied in different case constellations, such as those mentioned in Article 6(6) of the Return Directive (decision on ending of legal stay combined with return decision) and it entails that a repetitive assessment of the risk of breach of the principle of non-refoulement is not required if the respect of that principle was already assessed in previous procedures, if the assessment is final and if there is no change in the individual situation of the third-country national concerned. In the same vein, a repetitive assessment of other elements that could be invoked in order to prevent return should be obviated. Member States should take measures to avoid such repetitive assessments, for instance by merging in one procedural step, to the extent possible, the administrative hearings of the competent national authorities for different purposes (for example renewal or granting of a residence permit, determination of the right to enter the territory of a Member State, final negative decision on an application for international protection), provided that the right to be heard is fully respected. In this context, innovative tools such as for instance video-conferencing could also be developed for this purpose. Member States must ensure that the application of such measures does not result in a prejudice for the respect of procedural safeguards, and should pay particular attention to persons in need of special procedural guarantees, in particular minors (see below).

The right to be heard includes a right to be heard on the possible application of Articles 5 and 6(2) to (5) of the Return Directive and on the detailed arrangements for return, such as the period allowed for voluntary departure and whether return is to be voluntary or forced. The authority must, however, not warn the third-country national, prior to the hearing, that it is contemplating adopting a return decision, or disclose information on which it intends to rely as justification for that decision, or allow a period of reflection, provided that the third-country national has the opportunity effectively to present his point of view on the subject of the illegality of his stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision (see judgment of the ECJ in Case C-249/13, Boudjlida).

The procedural safeguards of Articles 12 and 13 of the Return Directive should be applied to all decisions related to return and must not be limited to the three types of decisions mentioned in Article 12(1) of that Directive.

The minor's right to be heard in return procedures involving or affecting them must be respected. In accordance with Article 12 of the Convention on the Rights of the Child, and taking into account the General Comment No 12 of the UN Committee on the rights of the child on the right of the child to be heard (65), the minors concerned must be heard, either directly or through a representative or an appropriate body; the right to express their views freely must be respected and due weight must be given to the minors' views, in accordance with their age and maturity and taking into account any communication difficulties they may have, in order to make their participation meaningful.

To ensure in practice the respect of the right of the minor to be heard, the measures adopted by Member States should be guided by the following key principles:

expressing views is a choice and not an obligation,

the right to be heard should not be subject to any age limits or other arbitrary restrictions, either in law or in practice,

a minor should be heard in an environment that is appropriate to his/her needs,

the means used to give effect to the right to be heard should be adapted to the level of understanding and ability to communicate and should take into account the circumstances of the case,

in full consideration of the need to protect minors from harm, a minor should not be interviewed more often than necessary,

facilitating the expression of views may require special measures for a minor in particularly vulnerable situations, including the provision of interpretation and translation services.

Collection of information on smuggling: in line with the priorities established in the EU Action Plan against Migrant Smuggling 2015-2020  (66), and in particular the need to improve gathering and sharing of information, the Commission recommends that Member States put in place adequate mechanisms in order to ensure systematic information gathering from third-country nationals apprehended in an irregular situation, in full respects of fundamental rights and EU asylum acquis. When granting the right to be heard before adopting a return decision, Member States are encouraged to invite returnees to share the information that they may have in relation to modus operandi and routes of smuggling networks, as well as links with trafficking in human beings and other crimes, and on financial transfers. Information obtained in this context should be collected and exchanged between relevant (immigration, border, police) authorities and agencies, both at national and EU level in accordance with national law and best practices exchanged in relevant EU fora.

12.2.   Decisions related to return

The Return Directive expressly regulates a number of different decisions related to return, that is:

(1)

return decisions (Article 3(4) and Article 6(1));

(2)

decisions on voluntary departure period as well as extension of such period (Article 7);

(3)

removal decisions (Article 8(3));

(4)

decisions on postponement of removal (Article 9);

(5)

decisions on entry bans as well as on suspension or withdrawal of entry ban (Article 11);

(6)

detention decisions as well as prolongation of detention (Article 15).

Most of the above decisions are ancillary to the return decision and should normally be adopted together with the return decision in one administrative act: return decisions may include a period for voluntary departure (Article 7), an entry ban (Article 11) and — possibly but not necessarily — a decision ordering the removal (in case of non-compliance with a period for voluntary departure).

Subsequent changes of these ancillary decisions are possible in certain cases:

an entry ban may be imposed at a later stage as an ancillary and subsequent element of an already issued return decision if the person has not complied with the obligation to return within the period for voluntary departure (Article 11(1)(b)),

an already issued entry ban may be withdrawn or suspended (Article 11(3-5)),

an already granted period for voluntary departure may be extended (Article 7(2)),

an already executable return decision (or removal order) may be postponed (Article 9).

Article 6(6) of the Return Directive confirms a general principle allowing Member States to combine several different decisions (including decisions not directly related to return) within one administrative or judicial act, provided that the relevant safeguards and provisions for each individual decision are respected. Decisions on ending of legal stay (such as the final rejection of an asylum application, the withdrawal of a visa or the non-renewal of a residence permit) may therefore be adopted either separately or together with a return decision in a single administrative or judicial act.

Member States should act with due diligence and without delay to take a decision on the legal status of third-country nationals (see judgment of the ECJ in Case C-329/11, Achughbabian (paragraph 31): ‘[…] the competent authorities are required, in order to prevent the objective of Directive 2008/115/EC […] from being undermined, to act with diligence and take a position without delay on the legality or otherwise of the stay of the person concerned’). Member States are therefore encouraged to adopt return decisions together with decisions on the ending of a legal stay in one single administrative or judicial act. When this is not possible (for example the authority responsible for the refusing the renewal of a residence permit is not entitled to issue return decisions), Member States should put in place swift and effective procedures involving the competent authorities to ensure that information is swiftly exchanges and return decisions are issued without delay following the decision on the termination of the legal stay — without prejudice to the right to grant an authorisation or right to stay in accordance with Article 6(4) of the Return Directive.

Concrete examples:

If a Member State decides to cancel a visa and to issue the third-country national with a time limit of 7 days to depart voluntarily from the territory of the Member State, is that decision a return decision in the context of the Return Directive? Or is it covered by other EU rules concerning visas?

Such decision may consist of two components: a visa revocation decision and a return decision within the meaning of the Return Directive. If the visa is cancelled with immediate effect, the third-country national will be illegally staying within the meaning of Article 3(2) of the Return Directive, hence Article 6 of the Directive (obligation to issue a return decision) applies. The cancellation of the visa may — in parallel — be subject of an appeal in accordance with visa rules contained in the Visa Code (67) (the possibility of adopting several decisions together with a return decision is expressly foreseen by Article 6(6) of the Return Directive).

If a third-country national is encountered on the territory with the required visa but does not (or no longer) meet the conditions for stay (Article 6 SBC), it would seem that the Member State can issue a return decision. Would this return decision (perhaps accompanied by an entry ban) automatically mean that the visa is no longer valid?

According to Article 34(2) of the Visa Code ‘a visa shall be revoked where it becomes evident that the conditions (i.e. SBC entry conditions) for issuing it are no longer met’. The authorities issuing a return decision must also make sure that the visa is revoked. Both decisions can, however, be done within one administrative act. Issuing a return decision and letting the person depart with his/her valid (uniform) visa must be avoided.

Can a decision rejecting an asylum application also impose an obligation to return?

Yes. The final rejection of an asylum request and a return decision may be issued within one act in accordance with Article 6(6) of the Return Directive. Such a combined act consists, strictly logically speaking, of two subsequent and interrelated decisions, separated by a ‘logical moment’.

12.3.   Form of decisions and translation

Legal basis: Return Directive — Article 12(1)-(3)

1.

Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.

A written decision is the basic cornerstone of the procedural safeguards provided for in the Return Directive. It is not possible to waive this requirement. The information provided to the returnee should, however, not be limited to references to the available legal remedies: Member States are encouraged to also provide other information concerning practical means of compliance with the decision. It is recommended that the returnee should be given information as to whether, for instance, the Member State may contribute to the transportation costs, the returnee could benefit from an assisted voluntary return programme or an extension of the deadline to comply with the return decision may be obtained. The returnee should also be informed of the obligation to leave the territory of the EU Member States and Schengen Associated countries, as well as of the consequences of not complying with the obligation to return in order to encourage such a person to depart voluntarily.

In accordance with Article 6(2) second subparagraph of the Employers Sanctions Directive, returnees shall be informed about their right under the said Directive to claim back payment of outstanding remuneration from their employer as well as about available complaint mechanisms. This information could also be included in or attached to the return decision.

2.

Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand.

The request to receive a translation may be formulated by the returnee or his/her legal representative. The Member State is free to choose whether a written or oral translation is provided, while ensuring that the third-country national can understand the context and content. It is not possible to require a fee for providing a translation since this would undermine the spirit of the provision, which is to provide the returnee with the necessary information to allow him/her to fully understand his/her legal situation and eventually comply with the return decision.

It is up to national implementing legislation and administrative practice to decide what language the third-country national is reasonably presumed to understand. This assessment may be done in the same way and according to the same criteria as in asylum procedures (Article 12 of the Asylum Procedures Directive, Article 22 of the recast Qualification Directive and Article 5 of the Reception Conditions Directive), while taking into account that, due to the complexity of asylum procedures, the requirements for translation in this area may be higher than in the area of return. The asylum acquis requires Member States to make all reasonable efforts to provide for a translation into a language that the person concerned actually understands and the non-availability of interpreters may only be a valid reason in cases of extremely rare languages for which there is an objective lack of interpreters. A situation in which translators into the relevant language exist, but are not available for reasons internal to the administration, is not a justified reason for not providing a translation.

The possibility to use templates in order to rationalise the work of the administration is not limited to the scope of application of 12(3) (see below). As long as the template allows providing for an individualised translation of the decision in a language which the person understands or may reasonably be presumed to understand, such translation complies with Article 12(2) of the Return Directive and there is no need to use the derogation of Article 12(3).

3.

Member States may decide not to apply paragraph 2 to third-country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.

In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation.

Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned.

The use of a standard form for return under Article 12(3) of the Return Directive is a derogation to the general rule, which can only be used in those cases in which a third-country national has illegally entered the territory of a Member State.

The use of a standard form in such cases is an option for Member States. Attention must be paid to the fact that the illegal entry cases covered by Article 12(3) of the Return Directive are not always the same as the ‘border cases’ described in Article 2(2)(a) of that Directive — see section 2.1. An illegally staying third-country national who is apprehended in the territory of a Member State three months after illegal entry is not covered by the exception of Article 2(2)(a) of the Return Directive but may still be covered by the exception of Article 12(3).

Illegal crossing of the internal borders: paragraph 3 applies to third-country nationals ‘who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State’. In the specific context of this provision of the Return Directive, the term ‘illegal entry’ may also cover cases in which an illegally staying third-country national entered from another Member State in non-compliance with the conditions for entry and stay applicable in that Member State. Attention should be paid to the fact that in these specific cases (entry from another Member State) Article 6(2) or 6(3) of the Return Directive may be applicable.

Article 12(3) contains no derogation regarding the applicable legal remedies. The legal remedies mentioned in Article 13(1) of the Return Directive therefore have to be provided for also when the standard form mentioned in Article 12(3) is used.

12.4.   Legal remedies

Legal basis: Return Directive — Article 13(1) and (2)

1.

The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.

Effective remedies should be provided as regards all decisions related to return. The term ‘decisions related to return’ should be understood broadly, covering decisions on all issues regulated by the Return Directive, including return decisions, decisions granting or extending a period for voluntary departure, removal decisions, decisions on postponement of removal, decisions on entry bans as well as on suspension or withdrawal of entry bans (see section 12.2). The remedies applicable in case of detention decisions as well as prolongation of detention are regulated in more detail in Article 15 of the Return Directive concerning detention (see section 14).

Nature of reviewing body: in line with Article 6 and 13 ECHR and Article 47 CFR, the appeal body must in substance be an independent and impartial tribunal. Article 13(1) of the Return Directive is closely inspired by CoE Guideline 5.1 and it should be interpreted in accordance with relevant European Court of Human Rights (‘ECtHR’) case-law. In line with this case-law, the reviewing body can also be an administrative authority provided that this authority is composed of members who are impartial and who enjoy safeguards of independence and that national provisions provide for the possibility to have the decision reviewed by a judicial authority, in line with the standards set by Article 47 CFR on the right to an effective remedy.

Several safeguards exist to counter the risk of an eventual abuse of the possibility to appeal: Article 13 does not provide for an automatic suspensive effect in all circumstances (paragraph 2) and free legal assistance may be limited if the appeal is unlikely to succeed (paragraph 4). Attention should also be paid to the general principle of Union law of res judicata.

The deadlines for lodging appeals against decisions related to return must be set by national law. The Commission recommends that, to avoid possible misuse of rights and procedures, in particular appeals lodged shortly before the scheduled date of removal, Member States provide for the shortest deadline for lodging appeals against return decisions established by national law in comparable situations, provided that it does not represent a disproportionate interference with the right to an effective remedy. Judicial decisions should intervene without undue delays.

2.

The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.

Suspensive effect: the appeal body must have the power to suspend the enforcement of a return decision in individual cases. It should be clearly provided for in national legislation that the reviewing body itself (the body reviewing the decision related to return) has the power to suspend the enforcement within the frame of one procedure.

Obligation to grant automatic suspensive effect in case of risk of refoulement: ECtHR case-law requires automatic suspensive effect in cases in which there are substantial grounds for believing that the person, if returned, will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR (risk of torture or inhuman or degrading treatment upon return) — see Rule 39, Rules of the ECtHR. Article 13 of the Return Directive — interpreted in conjunction with Articles 5 and 9 of the Return Directive — thus obliges the reviewing body to grant ipso jure suspensive effect in line with this requirement if the principle of non-refoulement is at stake.

Obligation to grant automatic suspensive effect in case of risk of grave and irreversible deterioration of state of health: in its judgement in Case C-562/13, Abdida  (68) (paragraph 53), the ECJ confirmed: ‘Articles 5 and 13 of Directive 2008/115/EC, taken in conjunction with Articles 19(2) and 47 of the Charter, must be interpreted as precluding national legislation which does not make provision for a remedy with suspensive effect in respect of a return decision whose enforcement may expose the third-country national concerned to a serious risk of grave and irreversible deterioration in his state of health’.

The Commission recommends granting automatic suspensive effect to appeals against return decision only in the compulsory cases mentioned above, to strike the right balance between the right to an effective remedy and the need to ensure the effectiveness of return procedures. When the appeal refers to other reasons (for example procedural shortcomings, respect of family unity, protection of other rights or interests) and when irreparable damage to life or serious risk of grave and irreversible deterioration of the state of health are not at stake, Member State can decide not to grant automatic suspensive effect to appeals. However, the competent national authorities or bodies must in any case retain the power to decide to temporarily suspend the enforcement of a decision in individual cases where deemed necessary for other reasons (for example family life, healthcare or best interests of the child).

12.5.   Linguistic assistance and free legal aid

Legal basis: Return Directive — Article 13(3) and (4); Directive 2013/32/EU (the ‘Asylum Procedures Directive’) — Articles 20 and 21, replacing Article 15(3) to (6) of Council Directive 2005/85/EC (69)

3.

The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance.

Linguistic assistance implies not only an obligation to provide for a translation of a decision (already covered by Article 12(2) of the Return Directive) but also an obligation to make available assistance by interpreters in order to allow the third-country national to exercise the procedural rights afforded to him/her under Article 13 of the Directive.

It should be recalled that in the case Conka v Belgium  (70), the ECtHR identified the availability of interpreters as one of the factors which affect the accessibility of an effective remedy. The rights of the third-county national to receive linguistic assistance should be granted by Member States in a way which provides the person concerned with a concrete and practical possibility to make use of it (effet utile of the provision).

4.

Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.

Legal assistance and legal representation: paragraph 4 specifies in which cases and under which conditions Member States have to cover the costs for legal advice and representation — referring in essence to the conditions enumerated in the Asylum Procedures Directive. Member States must provide both legal assistance and legal representation free of charge if the conditions foreseen in the Directive and national implementing legislation are met.

The request for free legal assistance and/or legal representation can be made by the returnee or his/her representative at any appropriate moment of the procedure.

Provision of legal advice by administrative authorities: legal advice may in principle be offered also by the administrative authorities responsible for issuing the return decisions, if the information provided for is objective and unbiased (effet utile). It is important that the information is provided by a person who acts impartially/independently so as to avoid possible conflicts of interests. This information cannot be provided therefore by the person deciding on or reviewing the case, for instance. A good practice, already in use in some Member States, is to separate between the decision making authorities and those providing legal and procedural information. However, should a Member State decide to allocate the latter responsibility to the decision making authorities, a clear separation of tasks should be ensured for the personnel involved, for instance by creating a separate and independent section in charge only of providing legal and procedural information.

Conditions for free legal assistance/representation — reference to Article 15(3) to (6) of Directive 2005/85/EC: the reference to certain conditions/limitations which Member States may foresee in respect of free legal aid is a dynamic reference and must be read as reference to the current Articles 20 and 21 of the Asylum Procedures Directive currently in force and replacing Directive 2005/85/EC. In accordance with the above-mentioned provisions, Member States may provide that the free legal assistance and representation is only granted:

where the appeal is considered by a court or tribunal or other competent authority to have tangible prospect of success,

to those who lack sufficient resources,

through the services provided by legal advisers or other counsellors specifically designated by national law to assist and represent applicants,

in first instance appeal procedures and not for further appeals or reviews.

Member States may also:

impose monetary and/or time limits on the provision of free legal assistance and representation, provided that such limits do not arbitrarily restrict access to this right,

provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance,

demand to be reimbursed wholly or partially for any costs granted if and when the applicant's financial situation has improved considerably or if the decision to grant such costs was taken on the basis of false information supplied by the applicant.

Effective remedy against refusal to grant free legal aid: where a decision not to grant free legal assistance and representation is taken by an authority which is not a court or tribunal, Member States shall ensure that the applicant has the right to an effective remedy before a court or tribunal against that decision. The right to an effective remedy and to a fair trial is among the fundamental rights forming an integral part of the European Union legal order and observance of those rights is required even where the applicable legislation does not expressly provide for such a procedural requirement.

13.   SAFEGUARDS PENDING RETURN

Legal basis: Return Directive — Article 14(1)

Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9:

(a)

family unity with family members present in their territory is maintained;

(b)

emergency healthcare and essential treatment of illness are provided;

(c)

minors are granted access to the basic education system subject to the length of their stay;

(d)

special needs of vulnerable persons are taken into account.

Historic reminder/explanation: the Return Directive leaves to Member States the choice of either issuing return decisions to illegally staying third-country nationals or to grant a right to stay. This approach should help reduce grey areas. It may, however, also increase in practice the absolute number of cases in which Member States issue return decisions which cannot be enforced due to practical or legal obstacles for removal (for example delays in obtaining the necessary papers from third countries and non-refoulement cases). In order to avoid a legal vacuum for these persons, the Commission had proposed to provide for a minimum level of conditions of stay for those illegally staying third-country nationals for whom the enforcement of the return decision has been postponed or who cannot be removed, by referring to the substance of a set of conditions already laid down in Articles 7 to 10, Article 15 and Articles 17 to 20 of Council Directive 2003/9/EC (71) (Reception Conditions Directive), covering — in essence — four basic rights: (1) family unity; (2) healthcare; (3) schooling and education for minors; and (4) respect for special needs of vulnerable persons. Other important rights under the Reception Conditions Directive, such as access to employment and material reception conditions, were not referred to. Following negotiations, in the course of which concerns were expressed that references to the Reception Conditions Directive might be perceived as an ‘upgrading’ of the situation of irregular migrants and thus send a wrong policy message, a ‘self-standing’ list of rights was established.

The scope of situations covered by Article 14(1) is broad: it covers the period for voluntary departure as well as any period for which removal has been formally or de facto postponed in accordance with Article 9 of the Return Directive (for example appeal with suspensive effect, possible violation of non-refoulement principle, health reasons, technical reasons, failure of removal efforts due to lack of identification). Periods spent in detention are expressly excluded, since the related safeguards are regulated elsewhere (see section 15).

The provision of emergency healthcare and necessary treatment of the illness is a basic minimum right and access to it must not be made dependent on the payment of fees.

Access to education: the limitation of ‘subject to the length of their stay’ should be interpreted restrictively. In cases of doubt about the likely length of stay before return, access to education should be granted rather than not. A national practice where access to the education system is normally only established if the length of the stay is more than fourteen days may be considered acceptable. As regards practical problems, such as cases in which the minor does not have a document proving the education already obtained in other countries or cases in which the minor does not speak any language in which education can be provided in the Member State, appropriate answers need to be found at national level, taking into account the spirit of the Directive and relevant international law instruments such as the 1989 Convention on the Rights of the Child and General Comment No 6 thereto (72). Inspiration may also be drawn from the asylum acquis (in particular Article 14 of the Reception Conditions Directive 2013/33/EU).

Other basic needs: in its judgement in Case C-562/13, Abdida, the ECJ found that Member States are obliged to also cover other basic needs to ensure that emergency healthcare and essential treatment of illness are in fact made available during the period in which that Member State is required to postpone removal. It is for the Member States to determine the form in which such provision for the basic needs of the third-country national concerned is to be made.

The logic upon which the ECJ relied to establish this obligation was that the requirement to provide emergency healthcare and essential treatment of illness under Article 14(1)(b) of the Return Directive may be rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs of the third-country national concerned. Based on this logic developed by the ECJ, and in light of the indications provided for in relevant case-law of the ECtHR, it can be derived that enjoyment of the other rights enumerated in Article 14(1) of the Return Directive (such as in particular access to education and taking into account needs of vulnerable persons) also give rise to a concomitant requirement to make provision for the basic needs of the third-country national concerned.

Even though there is no general legal obligation under Union law to make provision for the basic needs of all third-country nationals pending return, the Commission encourages Member States to do so under national law, in order to assure humane and dignified conditions of life for returnees.

13.1.   Written confirmation

Legal basis: Return Directive — Article 14(2)

Member States shall provide the persons referred to in paragraph 1 with a written confirmation in accordance with national legislation that the period for voluntary departure has been extended in accordance with Article 7(2) or that the return decision will temporarily not be enforced.

Recital 12 of the Return Directive specifies: ‘In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmation of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directive’.

Form of the written confirmation: Member States enjoy wide discretion. The confirmation can either be a separate paper issued by the national authorities or part of a formal decision related to return. It is important that it allows the returnee to clearly demonstrate — in case of a police control — that he/she is already subject of a pending return decision and that he/she benefits from a period for voluntary departure, a formal postponement of removal or that he/she is subject of a return decision which can temporarily not be enforced. The confirmation should specify, if possible, the length of the period for voluntary departure or the postponement.

In Member States in which data exchange systems allow for the quick verification of the status of irregular migrants in case of police controls on the basis of certain personal data or reference numbers, the written confirmation requirement can be considered as fulfilled if the person is provided with (or already owns) documents or papers containing these personal data or reference numbers.

13.2.   Situations of protracted irregularity

No obligation to grant a permit to non-removable returnees: Member States are not obliged to grant a permit to returnees once it becomes clear that there is no more reasonable prospect of removal, although they may decide to do so in application of Article 6(4) of the Return Directive (see section 5.6).

In this regard, the ECJ expressly clarified in the judgment of Case C-146/14, Mahdi  (73) (paragraphs 87 and 88): ‘[…] the purpose of the directive is not to regulate the conditions of residence on the territory of a Member State of third-country nationals who are staying illegally and in respect of whom it is not, or has not been, possible to implement a return decision. […] However, Article 6(4) of Directive 2008/115/EC enables the Member States to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory’.

Criteria to take into account for granting permits: as highlighted above, there is no legal obligation to issue permits to non-removable returnees and Member States enjoy broad discretion. In this context, it is recommended that the assessment criteria that could be taken into account by Member States include both individual (case-related) as well as horizontal (policy-related) elements such as in particular:

the cooperative/non-cooperative attitude of the returnee,

the length of factual stay of the returnee in the Member State,

integration efforts made by the returnee,

personal conduct of the returnee,

family links,

humanitarian considerations,

the likelihood of return in the foreseeable future,

need to avoid rewarding irregularity,

impact of regularisation measures on migration pattern of prospective (irregular) migrants,

likelihood of secondary movements within Schengen area.

14.   DETENTION

The procedural safeguards listed in Articles 12 (form and translation) and Article 13 (effective remedy and free legal aid) of the Return Directive are express manifestations of the fundamental rights to good administration, to be heard, to an effective remedy and to a fair trial, all forming an integral part of the European Union legal order. Observance of those rights is thus required also with regard to detention decisions.

On top of these general requirements, Article 15 of the Return Directive sets out certain requirements specifically applicable in relation to detention decisions.

14.1.   Circumstances justifying detention

Legal basis: Return Directive — Article 15(1)

Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

(a)

there is a risk of absconding; or

(b)

the third-country national concerned avoids or hampers the preparation of return or the removal process.

Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.

Imposing detention for the purpose of removal is a serious intrusion into the fundamental right of liberty of persons and therefore subject to strict limitations.

Obligation to impose detention only as a measure of last resort: Article 8(1) of the Return Directive obliges Member States to take ‘all necessary measures’ to enforce return decisions. The possibility to impose detention is one of the possible measures which may be used by Member States as a measure of last resort. The ECJ has in this context expressly highlighted in its judgment in Case C-61/11, El Dridi (paragraph 41), that the Return Directive foresees a ‘a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility’.

An obligation on Member States to apply detention exists only in situations in which it is clear that the use of detention is the only way to make sure that the return process can be prepared and the removal process can be carried out (necessity of detention). Any detention shall be based on an individual assessment and shall be for as short a period as possible, only maintained as long as removal arrangements are in progress and executed with due diligence (proportionality of detention).

Reasons for detention: the sole legitimate objective of detention under the Return Directive is to prepare the return and/or to carry out the removal process, in particular when there is: (1) a risk of absconding; or (2) avoidance or hampering of the preparation of return or the removal process by the returnee. When such reasons for detention exist, and when no less coercive measures can be applied effectively in a specific case (last resort), Member States are entitled and should use detention for the time necessary to ensure that return procedures can be successfully carried out in compliance with the provisions of Article 8 of the Return Directive.

Even though the wording of the Return Directive is phrased as an indicative listing (‘in particular’), these two concrete cases cover the main scenarios encountered in practice that justify detention in view of preparing and organising return and carrying out the removal process. The existence of a specific reason for detention — and the non-availability of effective and sufficient less coercive measures — must be individually assessed in each case. A refusal of entry at the border, the existence of a SIS alert for refusal of entry, lack of documentation, lack of residence, absence of cooperation and other relevant indications/criteria need to be taken into account when assessing whether there is a risk of absconding (see section 1.6) that may justify the need for detention.

No detention for public order reasons: the possibility of maintaining or extending detention for public order reasons is not covered by the text of the Return Directive and Member States are not allowed to use immigration detention for the purposes of removal as a form of ‘light imprisonment’. The primary purpose of detention for the purposes of removal is to assure that returnees do not undermine the execution of the obligation to return by absconding. It is not the purpose of Article 15 to protect society from persons which constitute a threat to public policy or security. The legitimate aim to protect the society should be addressed by other pieces of legislation, in particular criminal law, criminal administrative law and legislation covering the ending of legal stay for public order reasons. In this respect, the ECJ stated in its judgment on Case C-357/09, Kadzoev  (74) (paragraph 70): ‘The possibility of detaining a person on grounds of public order and public safety cannot be based on Directive 2008/115/EC. None of the circumstances mentioned by the referring court (aggressive conduct; no means of support; no accommodation) can therefore constitute in itself a ground for detention under the provisions of that directive’. The past behaviour/conduct of a person posing a risk to public order and safety (for instance non-compliance with administrative law in other fields than migration law or infringements of criminal law) may, however, be taken into account when assessing whether there is a risk of absconding (see section 1.6). If the past behaviour/conduct of the person concerned allows drawing the conclusion that the person will probably not act in compliance with the law and avoid return, this may justify the decision that there is a risk of absconding.

Obligation to provide for effective alternatives to detention: Article 15(1) must be interpreted as requiring each Member State to provide in its national legislation for alternatives to detention; this is also consistent with the terms of recital 16 to the Directive (‘[…] if application of less coercive measures would not be sufficient’). In the judgment of Case C-61/11, El Dridi (paragraph 39), the ECJ confirmed that ‘[…] it follows from recital 16 in the preamble to that directive and from the wording of Article 15(1) that the Member States must carry out the removal using the least coercive measures possible. It is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States may deprive that person of his liberty and detain him’. However, this does not mean that a pre-condition for detention is that a third-country national was already subject to a less coercive measure.

Article 15(1) of the Return Directive requires that less coercive measures must be ‘sufficient’ and that it should be possible to apply them ‘effectively’ to the third-country national concerned. This implies that, to comply with the obligation to provide for effective alternatives to detention, Member States must provide in national law for alternatives to detention that can achieve the same objectives of detention (i.e. prevent absconding, avoid that the third-country national avoids or hampers return) while using means that are less intrusive of the right to liberty of the individual. National authorities responsible for taking decisions related to detention and alternatives to detention need to assess whether such less coercive measures would be sufficient and effective in each individual case.

Examples of alternatives to detention include residence restrictions, open houses for families, case-worker support, regular reporting, surrender of ID/travel documents, bail and electronic monitoring. The UNHCR provides some practical examples of good practices (75) on alternatives to detention.

Benefits and risks — alternatives to detention

The benefits of providing for alternatives to detention may include higher return rates (including voluntary departure), improved cooperation with returnees in obtaining necessary documentation, financial benefits (less cost for the State) and less human cost (avoidance of hardship related to detention).

Risks include an increased likelihood of absconding, possible creation of pull factors (alternative detention facilities such as family houses may be perceived as attractive for potential irregular immigrants) and possible social tensions in the neighbourhood of open centres.

Recommendation: The challenge is to find intelligent solutions with an appropriate mix of rewards and deterrents. A complete absence of deterrents may lead to insufficient removal rates. At the same time an overly repressive system with systematic detention may also be inefficient, since the returnee has little incentive or encouragement to cooperate in the return procedure. Member States should develop and use a wide range of alternatives to address the situation of different categories of third-country nationals. Tailored individual coaching, which empowers the returnee to take in hand his/her own return, early engagement and holistic case management focused on case resolution has proven to be successful. A systematic horizontal coaching of all potential returnees, covering advice on possibilities for legal stay/asylum as well as on voluntary/enforced return from an early stage (and not only once forced removal decisions are taken) should be aimed at.

Further clarification:

Being subject of return procedures: the formal requirement to be ‘subject of return procedures’ in Article 15(1) of the Return Directive is not synonymous with ‘subject of a return decision’. Detention may already be imposed — if all conditions of Article 15 are fulfilled — before a formal return decision is taken, for instance while the preparations of the return decision are under way and a return decision has not yet been issued.

Concrete examples:

An illegally staying third-country national may hide (not disclose) his/her identity in order to avoid removal. Is it legitimate to maintain detention in such circumstances, in order to exercise pressure on the third-country national to cooperate and thus make removal possible?

This kind of detention is covered by Article 15(1)(b) of the Return Directive, which expressly mentions ‘avoids or hampers […] the removal process’ as a reason for detention. Article 15(6)(a) lists ‘lack of cooperation’ as one of the two cases which may justify an extension of the maximum detention period for 12 months and the overall objective and finality of this kind of detention (Beugehaft or Durchsetzungshaft) is removal, not penalisation. Any detention for the purpose of removal must respect Article 15(4) of the Return Directive: ‘When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately’. This implies that in those cases in which it becomes clear that there are no more reasonable prospects of removal, detention must be ended — for instance when it becomes clear that the papers to be issued by a third country will come too late or will not be issued at all, even if the detainee would cooperate.

Is it possible to maintain detention if a returnee submits an asylum application?

Answer provided by the judgment of the ECJ in the Case C-534/11, Arslan  (76) (paragraphs 49 and 63): ‘Article 2(1) of Directive 2008/115/EC […] does not apply to a third-country national who has applied for international protection within the meaning of Directive 2005/85/EC during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known. […] Directives 2003/9/EC and 2005/85/EC do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85/EC after having been detained under Article 15 of Directive 2008/115/EC from being kept in detention on the basis of a provision of national law, where it appears, after an assessment on a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise theenforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return’. NB: the above reference to ‘national law’ relates to national rules on asylum-related detention, transposing — as the case may be — the detention-related requirements of the EU asylum acquis.

14.2.   Form and initial review of detention

Legal basis: Return Directive — Article 15(2)

Detention shall be ordered by administrative or judicial authorities.

Detention shall be ordered in writing with reasons being given in fact and in law.

When detention has been ordered by administrative authorities, Member States shall:

(a)

either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;

(b)

or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.

The third-country national concerned shall be released immediately if the detention is not lawful.

Judicial authorities may consist of judges, but need not necessarily be composed of judges. In line with relevant ECtHR case-law, they must have characteristics of independence, impartiality and offer judicial guarantees of an adversarial procedure.

Scope of judicial review: the review must assess all aspects expressly referred to in Article 15 of the Return Directive, taking into account both the questions of law (for example correctness of the detention procedure and of the decision on detention from the procedural/legal point of view) and questions of facts (for example the personal situation of the detainee, family links in the country, guarantees of the departure from the territory, reasonable prospect of removal).

Maximum duration of ‘speedy judicial review’: the text of the Return Directive is inspired by the wording of Article 5(4) ECHR, which requires a ‘speedy judicial review by a Court’. Relevant ECtHR case-law clarifies that an acceptable maximum duration (i.e. a reasonable time) cannot be defined in the abstract. It must be determined in the light of the circumstances of each case, taking into account the complexity of the proceedings as well as the conduct by the authorities and the applicant. Taking a decision within less than one week can certainly be considered a good practice that is compliant with the legal requirement of speediness.

Requirement of written decision also applies to prolongation decisions: the requirement to issue a written decision with reasons also applies to decisions concerning prolongation of detention. In the judgment of Case C-146/14, Mahdi, the ECJ expressly clarified (paragraph 44): ‘The requirement that a decision be adopted in writing must be understood as necessarily covering all decisions concerning extension of detention, given that (i) detention and extension of detention are similar in nature since both deprive the third-country national concerned of his liberty in order to prepare his return and/or carry out the removal process; and (ii) in both cases the person concerned must be in a position to know the reasons for the decision taken concerning him’.

All the safeguards inherent to the respect of the right to be heard apply to detention decisions and decisions on prolongation of detention. However, the non-respect of this right renders a decision invalid only insofar as the outcome of the procedure would have been different if the right was respected — see case C-383/13, G & R: ‘[…] European Union law, in particular Article 15(2) and (6) of Directive 2008/115/EC, must be interpreted as meaning that, where the extension of a detention measure has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different’ (see section 12).

14.3.   Regular review of detention

Legal basis: Return Directive — Article 15(3)

In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio.

No written review decision required under Article 15(3) first sentence: this was clarified by the ECJ in the judgment of Case C-146/14, Mahdi (paragraph 47): ‘the provisions of Article 15 of Directive 2008/115/EC do not require the adoption of a written “review measure” […]. The authorities which carry out the review of a third-country national's detention at regular intervals pursuant to the first sentence of Article 15(3) of the directive are therefore not obliged, at the time of each review, to adopt an express measure in writing that states the factual and legal reasons for that measure’. Member States are, however, free to adopt a written review decision in accordance with national law.

Combined review and prolongation decisions must be adopted in writing: in its judgement on case C-146/14, Mahdi, the ECJ clarified (paragraph 48): ‘In such a case, the review of the detention and the decision on the further course to take concerning the detention occur in the same procedural stage. Consequently, that decision must fulfil the requirements of Article 15(2) of Directive 2008/115/EC’.

In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.

Meaning of ‘prolonged detention’: Article 15(3) second sentence of the Return Directive requires an ex officio judicial supervision in cases of ‘prolonged detention’. This implies the need for action by judicial authorities, also in those cases in which the concerned person does not appeal. Based on a linguistic comparison of the term ‘prolonged detention’ (German: ‘Bei längerer Haftdauer’; French: ‘En cas de périodes de rétention prolongées’; Dutch: ‘In het geval van een lange periode van bewaring’; Spanish: ‘En caso de periodos de internamiento prolongados’; Italian: ‘Nel caso di periodi di trattenimento prolungati’) it is clear that this term refers in substance to a long period of detention independently of the fact that a formal decision on prolongation was already taken or not. The Commission considers that an interval of 6 months for exercising the first ex officio judicial supervision of the detention decision is certainly too long, whilst a three months ex officio judicial supervision may be considered at the limit of what might still be compatible with 15(3) of the Directive, provided that there is also a possibility to launch individual reviews upon application if needed.

Powers of the supervising judicial authority: a review mechanism which only examines questions of law and not questions of fact is not sufficient. The judicial authority must have the power to decide both on the facts and legal issues — see judgment of the ECJ in Case C-146/14, Mahdi (paragraph 62): ‘[…] the judicial authority having jurisdiction must be able to substitute its own decision for that of the administrative authority or, as the case may be, the judicial authority which ordered the initial detention and to take a decision on whether to order an alternative measure or the release of the third-country national concerned. To that end, the judicial authority ruling on an application for extension of detention must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national. Furthermore, that authority must be able to consider any other element that is relevant for its decision should it so deem necessary […]’.

14.4.   Ending of detention

Legal basis: Return Directive — Article 15(4)-(6)

4.

When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

5.

Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.

6.

Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further 12 months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:

(a)

a lack of cooperation by the third-country national concerned; or

(b)

delays in obtaining the necessary documentation from third countries.

Detention must be ended and the returnee must be released in a number of different situations, such as in particular if:

there is no more reasonable prospect of removal for legal or other considerations,

removal arrangements are not properly followed up by the authorities,

the maximum time limits for detention have been reached.

Furthermore an end should be given to detention on a case-by-case basis if alternatives to detention become an appropriate option.

14.4.1.   Absence of reasonable prospect of removal

Absence of reasonable prospect of removal: in the judgment of Case C-357/09, Kadzoev (paragraph 67), the ECJ provided a clarifying interpretation of the meaning of ‘reasonable prospect’: ‘Only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal. That reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods’.

Absence of a ‘reasonable prospect’ is not the same as ‘impossibility to enforce’: ‘impossibility to enforce’ is a more categorical assertion and more difficult to demonstrate than ‘absence of reasonable prospect’, which refers to certain degree of likeliness only.

Periods of detention which should be taken into account when assessing the ‘reasonable prospect of removal’: given the emphasis put by Article 15 (as well as recital 6) of the Return Directive on a concrete individual case-by-case assessment for determining the proportionality of deprivation of liberty, regard must always be taken of the maximum detention periods for the concerned individual in the specific case. This means that the maximum periods laid down by national law of the concerned Member State are relevant. This also implies that a returnee should not be detained in a Member State if it appears unlikely from the beginning that the person concerned will be admitted to a third country within the maximum detention period allowed under the legislation of that Member State (in the judgment of Case C-357/09, Kadzoev, the ECJ referred to the maximum periods under the Directive, since these were the same as the maximum periods under the applicable legislation in the concerned Member State).

The Commission recommends providing for a maximum initial period of detention of six months, which shall be adapted in the light of the circumstances of the case and be reviewed at reasonable intervals of time under the supervision of a judicial authority, and for the possibility to further prolong the detention until 18 months in the cases provided for in Article 15(6) of the Return Directive.

Once the maximum periods of detention have been reached, Article 15(4) of the Return Directive is not applicable any more and the person must in any event be released immediately — see the judgement of the ECJ in Case C-357/09, Kadzoev (paragraphs 60 and 61): ‘It is clear that, where the maximum duration of detention provided for in Article 15(6) of Directive 2008/115/EC has been reached, the question whether there is no longer a “reasonable prospect of removal” within the meaning of Article 15(4) does not arise. In such a case the person concerned must in any event be released immediately. Article 15(4) of Directive 2008/115/EC can thus only apply if the maximum periods of detention laid down in Article 15(5) and (6) of the directive have not expired’.

Further clarifications:

Attention should be paid to the specific situation of stateless persons, who may be unable to benefit from consular assistance by third-countries in view of obtaining a valid identity or travel document. In the light of the judgment of the ECJ on Case C-357/09, Kadzoev, Member States should make sure that there is a reasonable prospect of removal that justifies imposing or prolonging detention.

Is it legitimate to maintain detention if the third-country national for the time being is protected from removal because of the principle of non-refoulement?

If removal becomes unlikely (for instance because of a likely permanent non-refoulement issue), third-country nationals must be released in accordance with Article 15(4) of the Return Directive. If the non-refoulement issue is only of limited and temporary nature (for instance a credible diplomatic assurance from the country of return is likely to be issued shortly or the returnee is temporarily in need for vital medical treatment which is not available in country of return), detention may be maintained if there is still a reasonable prospect of removal.

14.4.2.   Reaching the maximum period of detention

Article 15(5) and (6) of the Return Directive obliges Member States to fix under national law (77) maximum time limits for detention which shall not exceed 6 months (in regular cases) or 18 months (in two qualified cases: lack of cooperation by the returnee or delays in obtaining the necessary documentation from third countries).

The shorter maximum detention periods fixed by national law prevail over the 6/18 months deadline provided for by the Return Directive: in the handling of concrete cases, the maximum periods fixed by national law (in compliance withthe Return Directive) and not the maximum periods fixed by the Return Directive must be applied. This implies that a Member State which has fixed a national maximum of for example 60 days for non-cooperating returnees cannot maintain detention beyond those 60 days, even though Article 15(6) of the Return Directive provides for a frame of up to 18 months.

National law should set a maximum period of detention that allows the competent national authorities to take all the necessary measures to enforce the return decision, hence to finalise the necessary procedures for successfully returning illegally staying third-country nationals and securing readmission in the third country of return. The Commission recommends that Member States use the margins established by Article 15 of the Return Directive, providing for a maximum initial period of detention of six months, and for the possibility to further prolong detention until 18 months in the cases foreseen by Article 15(6) of that Directive. It is recalled that the actual duration of detention must be determined on a case-by-case basis and that the returnee must be released if the conditions for detention (for example, a reasonable prospect of removal) no longer exist.

Examples for reasons justifying/not justifying prolonged detention under Article 15(6):

An absence of identity documents as such is not sufficient to justify the prolongation of detention — see judgment of the ECJ in Case C-146/14, Mahdi (paragraph 73): ‘[…] the fact that the third-country national concerned has no identity documents cannot, on its own, be a ground for extending detention under Article 15(6) of Directive 2008/115/EC’.

Non-cooperation in obtaining identity documents may justify the prolongation of detention if there is a causal link between the non-cooperation and non-return — see Judgment of the ECJ in Case C-146/14, Mahdi (paragraph 85): ‘[…] only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that that operation lasts longer than anticipated because of that conduct, […]’.

Further clarifications:

 

Taking into account periods of detention as an asylum seeker: when calculating the period of detention for the purpose of removal, periods of detention as asylum seeker need not be taken into account, since detention for removal purposes and detention of asylum seekers fall under different legal rules and regimes — see judgment of the ECJ in Case C-357/09, Kadzoev (paragraphs 45 and 48): ‘Detention for the purpose of removal governed by Directive 2008/115/EC and detention of an asylum seeker in particular under Directives 2003/9/EC and 2005/85/EC and the applicable national provisions thus fall under different legal rules. Consequently, […] a period during which a person has been held in a detention centre on the basis of a decision taken pursuant to the provisions of national and Community law concerning asylum seekers may not be regarded as detention for the purpose of removal within the meaning of Article 15 of Directive 2008/115/EC’.

 

Paragraph 47 of the same judgment then adds: ‘Should it prove to be the case that no decision was taken on Mr Kadzoev's placement in the detention centre in the context of the procedures opened following his applications for asylum, referred to in paragraph 19 above, so that his detention remained based on the previous national rules on detention for the purpose of removal or on the provisions of Directive 2008/115/EC, Mr Kadzoev's period of detention corresponding to the period during which those asylum procedures were under way would have to be taken into account in calculating the period of detention for the purpose of removal mentioned in Article 15(5) and (6) of Directive 2008/115/EC’.

 

Taking into account periods of detention pending preparation of a Dublin transfer: the same logic as set out above in relation to periods of detention as asylum seeker applies.

 

Taking into account periods of detention during which an appeal with suspensive effect is pending: such periods must be taken into account — see judgment of the ECJ in Case C-357/09, Kadzoev (paragraphs 53-54): ‘The period of detention completed by the person concerned during the procedure in which the lawfulness of the removal decision is the subject of judicial review must […] be taken into account for calculating the maximum duration of detention laid down in Article 15(5) and (6) of Directive 2008/115/EC. If it were otherwise, the duration of detention for the purpose of removal could vary, sometimes considerably, from case to case within a Member State or from one Member State to another because of the particular features and circumstances peculiar to national judicial procedures, which would run counter to the objective pursued by Article 15(5) and (6) of Directive 2008/115/EC, namely to ensure a maximum duration of detention common to the Member States’.

 

Taking into account periods of detention for the purpose of removal spent in (another) Member State A, immediately followed by pre-removal detention in Member State B (such a situation may arise for instance in the context of the transfer of a third-country national from Member State A to Member State B under a bilateral readmission agreement covered by Article 6(3) of the Return Directive): the Commission considers that the absolute 18 months threshold of uninterrupted pre-removal detention should not be exceeded, in view of the need to respect the effet utile of the maximum time-limit fixed by Article 15(6) of the Return Directive. An exchange of information between Member States on periods of detention already spent in another Member State as well as an eventual possibility for Member State B to refuse transfer from Member State A if Member State A made the request excessively late should be addressed under the relevant bilateral readmission agreements.

 

Taking into account periods of detention completed before the rules in the Return Directive became applicable: such periods must be taken into account (see judgment of the ECJ in Case C-357/09, Kadzoev, paragraphs 36-38).

14.5.   Re-detention of returnees

The maximum period of detention prescribed by the Return Directive must not be undermined by re-detaining returnees immediately, following their release from detention.

Re-detention of the same person at a later stage may only be legitimate if an important change of relevant circumstance has taken place (for instance the issuing of necessary papers by a third country or an improvement of the situation in the country of origin, allowing for safe return), if this change gives rise to a ‘reasonable prospect of removal’ in accordance with Article 15(4) of the Return Directive and if all other conditions for imposing detention under Article 15 of that Directive are fulfilled.

14.6.   Application of less coercive measures after ending of detention

Less coercive measures, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed as long as and to the extent that they can still be considered a ‘necessary measure’ to enforce return. While there are no absolute maximum time limits foreseen for the application of less coercive measures, the scope and duration of such measures shall be subject to a thorough assessment as to their proportionality.

Moreover, if the nature and intensity of a less coercive measures is similar or equal to deprivation of liberty (for example the imposition of an unlimited obligation to stay at a specific facility, without possibility to leave such facility), it must be considered as a de facto continuation of detention and the time limits foreseen in Article 15(5) and (6) of the Return Directive apply.

15.   DETENTION CONDITIONS

Legal basis: Return Directive — Article 16

1.

Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners

2.

Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities.

3.

Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided.

4.

Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation.

5.

Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.

15.1.   Initial police custody

Initial police arrest (apprehension) for identification purposes is covered by national law: this is expressly highlighted in recital 17 of the Return Directive: ‘Without prejudice to the initial apprehension by law-enforcement authorities,regulated by national legislation, detention should, as a rule, take place in specialised detention facilities’. This clarifies that during an initial period national law may continue to apply. Even though this is no legal obligation, Member States are encouraged to make sure already at this stage that third-country nationals are kept separated from ordinary prisoners.

Length of the initial apprehension period during which suspected irregular migrants may be kept in police custody: a brief but reasonable time for the purpose of identifying the person under constraint and researching the information enabling it to be determined whether that person is an illegally staying third-country national — see judgment of the ECJ in Case C-329/11, Achughbabian (paragraph 31): ‘It should be held, in that regard, that the competent authorities must have a brief but reasonable time to identify the person under constraint and to research the information enabling it to be determined whether that person is an illegally-staying third-country national. Determination of the name andnationality may prove difficult where the person concerned does not cooperate. Verification of the existence of an illegal stay may likewise prove complicated, particularly where the person concerned invokes a status of asylum seeker or refugee. That being so, the competent authorities are required, in order to prevent the objective of Directive 2008/115/EC, as stated in the paragraph above, from being undermined, to act with diligence and take a position without delay on the legality or otherwise of the stay of the person concerned’. Even though there is no detailed binding timeframe, the Commission encourages Member States to make sure that a transfer to a specialised detention facility for irregular migrants normally takes place within 48 hours after apprehension (exceptionally, longer periods may be admissible in case of remote geographic locations).

15.2.   Use of specialised facilities as a general rule

Use of specialised facilities is the general rule: returnees are no criminals and deserve treatment different from ordinary prisoners. The use of specialised facilities is therefore the general rule foreseen by the Return Directive. Member States are required to detain illegally staying third-country nationals for the purpose of removal in specialised detention facilities, and not in ordinary prisons. This implies an obligation on Member States to make sure that sufficient places in specialised detention facilities are available, therefore to bring detention capacity in line with actual needs, while ensuring adequate material detention conditions.

Exceptions to the general rule: the derogation foreseen in Article 16(1) of the Return Directive, which allows Member States to accommodate pre-removal detainees in exceptional cases in ordinary prisons, must be interpreted restrictively. This was expressly confirmed by the judgment of the ECJ in joint Cases C-473/13, Bero and C-514/13, Bouzalmate  (78) (paragraph 25): ‘The second sentence of […] Article 16(1) […] lays down a derogation from that principle, which, as such, must be interpreted strictly (see, to this effect, the judgment in Kamberaj, C-571/10, EU:C:2012:233, paragraph 86)’. Full consideration shall be given to fundamental rights when making use of such derogation, giving due consideration to elements such as situations of overcrowding, the need to avoid repeated transfers and possible detrimental effects on the returnee's wellbeing, particularly in the case of vulnerable persons.

Unpredictable peaks in the number of detainees: the derogation foreseen in Article 16(1) of the Return Directive may be applied when unforeseen peaks in the number of detainees caused by unpredictable quantitative fluctuations inherent to the phenomenon of irregular migration (not yet reaching the level of an ‘emergency situation’ expressly regulated in Article 18 of the Return Directive) cause a problem to place detainees in special facilities in a Member State, which otherwise disposes of an adequate/sufficient number of places in specialised facilities.

Aggressive detainees: in line with the relevant ECtHR case-law, Member States are under the obligation to protect returnees in detention from aggressive or inappropriate behaviour of other detainees. Member States are encouraged to look for practical ways for addressing this challenge within the specialised facilities and without resorting to prison accommodation. Possible solutions might include reserving certain parts/wings of detention centres to aggressive persons, or to have special detention centres reserved for this category of persons.

Absence of special detention facilities in a regional part of a Member State: the absence of special detention facilities in a regional part of a Member State — while in another part of the same Member State they exist — cannot justify per se a stay in an ordinary prison. This was expressly confirmed by the judgment of the ECJ in joint Cases C-473/13, Bero and C-514/13, Bouzalmate (paragraph 32): ‘Article 16(1) of Directive 2008/115/EC must be interpreted as requiring a Member State, as a rule, to detain illegally staying third-country nationals for the purpose of removal in a specialised detention facility of that State even if the Member State has a federal structure and the federated state competent to decide upon and carry out such detention under national law does not have such a detention facility’.

Brief detention periods: the fact that detention is likely to last for a brief period only (for example 7 days or less) is not a legitimate reason to resort to prison accommodation.

Detention in closed medical/psychiatric institutions: pre-removal detention in closed medical/psychiatric institutions or together with persons detained on medical grounds is not envisaged by Article 16(1) of the Return Directive and would run contrary to its effet utile unless, in light of the medical condition and state of health of the person concerned, the detention in or transfer to a specialised or adapted facility appears necessary in order to provide adequate and constant specialised medical supervision, assistance and care, with a view to avoiding deterioration of the state of health.

15.3.   Separation from ordinary prisoners

Obligation to keep returnees and prisoners separated is an absolute requirement: the Return Directive provides for an unconditional obligation requiring Member States to ensure that illegally staying third-country nationals are always kept separated from ordinary prisoners when a Member State can exceptionally not provide accommodation in specialised detention facilities.

Ex-prisoners subject to subsequent return: once the prison sentence has come to an end and the person should have been normally released, rules on detention for the purpose of removal start applying, including the obligation under Article 16(1) of the Return Directive to carry out detention in specialised facilities. If the preparation for removal, and possibly the removal itself, is carried out in a period still covered by the prison sentence, prison accommodation can be maintained because this is still covered by the sentence for the previously committed crime. Member States are encouraged to start all the necessary procedures for removal well in advance while persons are still serving their prison sentence in a prison, to ensure that the third-country national can be successfully returned at the latest at the moment in which they are released from prison.

Aggressive detainees: aggressive or inappropriate behaviour of returnees does not justify detaining them together with ordinary prisoners, unless an act of aggression is qualified as crime and a related prison sentence was imposed by a court.

The term ‘ordinary prisoners’ covers both convicted prisoners and prisoners on remand: this is confirmed by Guideline 10, paragraph 4 of the ‘20 Guidelines on forced return’ of the Committee of Ministers of the Council of Europe (‘CoE’), which explicitly highlights that ‘persons detained pending their removal from the territory should not normally be held together with ordinary prisoners, convicted or on remand’. Detainees must therefore also be separated from prisoners on remand.

Agreement by returnee to be detained together with prisoners is not possible: in the judgment of Case C-474/13, Pham  (79) (paragraphs 21 and 22), the ECJ expressly confirmed the following: ‘In that regard, the obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners, laid down in the second sentence of Article 16(1) of that directive, is more than just a specific procedural rule for carrying out the detention of third-country nationals in prison accommodation and constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the directive. In this context, a Member State cannot take account of the wishes of the third-country national concerned’.

15.4.   Material detention conditions

Return Directive — Article 16; CoE Guideline on forced return No 10 (‘conditions of detention pending removal’); CPT standards and factsheet on immigration detention; 2006 European Prison Rules

The Return Directive itself provides for a number of concrete safeguards. Member States are obliged to:

provide emergency healthcare and essential treatment of illness,

pay attention to the situation of vulnerable persons, which also implies ensuring, more generally, due consideration of elements such as the age, the disability and the health of the person concerned (including mental health),

provide detainees with information which explains the rules applied in the facility and sets out their rights and obligations; it is recommended that this information should be given as soon as possible and not later than 24 hours after arrival,

allow detainees to establish contact with legal representatives, family members and competent consular authorities,

provide relevant and competent national, international and non-governmental organisations and bodies the possibility to visit detention facilities; this right must be granted directly to the concerned bodies, independently of an invitation from the detainee.

As regards those issues which are not expressly regulated by the Return Directive, Member States need to comply with relevant CoE standards, in particular the ‘CPT standards’: the Return Directive does not regulate certain material detention conditions, such as the size of rooms, access to sanitary facilities, access to open air, nutrition, during detention. Its recital 17 confirms, however, that detainees must be treated in a humane and dignified manner withrespect for their fundamental rights and in compliance with international law. Whenever Member States impose detention for the purpose of removal, this must be done under conditions that comply with Article 4 CFR, which prohibits inhuman or degrading treatment. The practical impact of this obligation on Member States is set out in more detail in particular in:

(1)

the CoE Guideline on forced return No 10 (‘conditions of detention pending removal’);

(2)

the standards established by the CoE Committee on the Prevention of Torture (CPT standards, document CPT/Inf/E (2002) 1 — Rev. 2013; CPT factsheet on immigration detention, document CPT/Inf(2017)3), addressing specifically the special needs and status of irregular migrants in detention,

(3)

the 2006 European Prison Rules (Recommendation Rec(2006)2 of the Committee of Ministers to Member States) as basic minimum standards on all issues not addressed by the abovementioned standards;

(4)

the UN Standard Minimum Rules for the Treatment of Prisoners (approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977).

These standards represent a generally recognised description of the detention-related obligations which should be complied with by Member States in any detention as an absolute minimum, in order to ensure compliance with ECHR obligations and obligations resulting from the CFR when applying EU law.

CoE Guideline 10 — Conditions of detention pending removal

1.

Persons detained pending removal should normally be accommodated within the shortest possible time in facilities specifically designated for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably qualified personnel.

2.

Such facilities should provide accommodation which is adequately furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. In addition, care should be taken in the design and layout of the premises to avoid, as far as possible, any impression of a ‘carceral’ environment. Organised activities should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation.

3.

Staff in such facilities should be carefully selected and receive appropriate training. Member States are encouraged to provide the staff concerned, as far as possible, with training that would not only equip them with interpersonal communication skills but also familiarise them with the different cultures of the detainees. Preferably, some of the staff should have relevant language skills and should be able to recognise possible symptoms of stress reactions displayed by detained persons and take appropriate action. When necessary, staff should also be able to draw on outside support, in particular medical and social support.

4.

Persons detained pending their removal from the territory should not normally be held together with ordinary prisoners, whether convicted or on remand. Men and women should be separated from the opposite sex if they so wish; however, the principle of the unity of the family should be respected and families should therefore be accommodated accordingly.

5.

National authorities should ensure that the persons detained in these facilities have access to lawyers, doctors, non-governmental organisations, members of their families, and the UNHCR, and that they are able to communicate with the outside world, in accordance with the relevant national regulations. Moreover, the functioning of these facilities should be regularly monitored, including by recognised independent monitors.

6.

Detainees shall have the right to file complaints for alleged instances of ill-treatment or for failure to protect them from violence by other detainees. Complainants and witnesses shall be protected against any ill-treatment or intimidation arising as a result of their complaint or of the evidence given to support it.

7.

Detainees should be systematically provided with information which explains the rules applied in the facility and the procedure applicable to them and sets out their rights and obligations. This information should be available in the languages most commonly used by those concerned and, if necessary, recourse should be made to the services of an interpreter. Detainees should be informed of their entitlement to contact a lawyer of their choice, the competent diplomatic representation of their country, international organisations such as the UNHCR and the International Organisation for Migration (IOM), and non-governmental organisations. Assistance should be provided in this regard.

CPT standards on immigration detention — extracts

29.

(detention facilities). […] Obviously, such centres should provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them.

The staff of centres for immigration detainees has a particularly onerous task. Firstly, there will inevitably be communication difficulties caused by language barriers. Secondly, many detained persons will find the fact that they have been deprived of their liberty when they are not suspected of any criminal offence difficult to accept. Thirdly, there is a risk of tension between detainees of different nationalities or ethnic groups. Consequently, the CPT places a premium upon the supervisory staff in such centres being carefully selected and receiving appropriate training. As well as possessing well-developed qualities in the field of interpersonal communication, the staff concerned should be familiarised with the different cultures of the detainees and at least some of them should have relevant language skills. Further, they should be taught to recognise possible symptoms of stress reactions displayed by detained persons (whether post-traumatic or induced by socio-cultural changes) and to take appropriate action.

79.

Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities. For example, detained irregular migrants should have every opportunity to remain in meaningful contact with the outside world (including frequent opportunities to make telephone calls and receive visits) and should be restricted in their freedom of movement within the detention facility as little as possible. Even when conditions of detention in prisons meet these requirements — and this is certainly not always the case — the CPT considers the detention of irregular migrants in a prison environment to be fundamentally flawed, for the reasons indicated above.

82.

The right of access to a lawyer should include the right to talk with a lawyer in private, as well as to have access to legal advice for issues related to residence, detention and deportation. This implies that when irregular migrants are not in a position to appoint and pay for a lawyer themselves, they should benefit from access to legal aid.

Further, all newly arrived detainees should be promptly examined by a doctor or by a fully-qualified nurse reporting to a doctor. The right of access to a doctor should include the right — if an irregular migrant so wishes — to be examined by a doctor of his/her choice; however, the detainee might be expected to meet the cost of such an examination. Notifying a relative or third party of one's choice about the detention measure is greatly facilitated if irregular migrants are allowed to keep their mobile phones during deprivation of liberty or at least to have access to them.

90.

The assessment of the state of health of irregular migrants during their deprivation of liberty is an essential responsibility in relation to each individual detainee and in relation to a group of irregular migrants as a whole. The mental and physical health of irregular migrants may be negatively affected by previous traumatic experiences. Further, the loss of accustomed personal and cultural surroundings and uncertainty about one's future may lead to mental deterioration, including exacerbation of pre-existing symptoms of depression, anxiety and post-traumatic disorder.

91.

At a minimum, a person with a recognised nursing qualification must be present on a daily basis at all centres for detained irregular migrants. Such a person should, in particular, perform the initial medical screening of new arrivals (in particular for transmissible diseases, including tuberculosis), receive requests to see a doctor, ensure the provision and distribution of prescribed medicines, keep the medical documentation and supervise the general conditions of hygiene.

2006 European Prison Rules — Extracts

Accommodation

18.1

The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.

18.2

In all buildings where prisoners are required to live, work or congregate:

a.

the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;

b.

artificial light shall satisfy recognised technical standards; and

c.

there shall be an alarm system that enables prisoners to contact the staff without delay.

Hygiene

19.1

All parts of every prison shall be properly maintained and kept clean at all times.

19.2

When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean.

19.3

Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.

19.4

Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.

19.5

Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy.

19.6

The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.

19.7

Special provision shall be made for the sanitary needs of women.

Clothing and bedding

20.1

Prisoners who do not have adequate clothing of their own shall be provided with clothing suitable for the climate.

20.2

Such clothing shall not be degrading or humiliating.

20.3

All clothing shall be maintained in good condition and replaced when necessary.

20.4

Prisoners who obtain permission to go outside prison shall not be required to wear clothing that identifies them as prisoners.

21.

Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.

Nutrition

22.1

Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.

22.2

The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.

22.3

Food shall be prepared and served hygienically.

22.4

There shall be three meals a day with reasonable intervals between them.

22.5

Clean drinking water shall be available to prisoners at all times.

22.6

The medical practitioner or a qualified nurse shall order a change in diet for a particular prisoner when it is needed on medical grounds.

Prison regime

25.1

The regime provided for all prisoners shall offer a balanced programme of activities.

25.2

This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.

25.3

This regime shall also provide for the welfare needs of prisoners.

25.4

Particular attention shall be paid to the needs of prisoners who have experienced physical, mental or sexual abuse.

Exercise and recreation

27.1

Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.

27.2

When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.

27.3

Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes.

27.4

Prison authorities shall facilitate such activities by providing appropriate installations and equipment.

27.5

Prison authorities shall make arrangements to organise special activities for those prisoners who need them.

27.6

Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.

27.7

Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities.

Freedom of thought, conscience and religion

29.1

Prisoners' freedom of thought, conscience and religion shall be respected.

29.2

The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.

29.3

Prisoners may not be compelled to practise a religion or belief, to attend religious services or meetings, to take part in religious practices or to accept a visit from a representative of any religion or belief.

Ethnic or linguistic minorities

38.1

Special arrangements shall be made to meet the needs of prisoners who belong to ethnic or linguistic minorities.

38.2

As far as practicable the cultural practices of different groups shall be allowed to continue in prison.

38.3

Linguistic needs shall be met by using competent interpreters and by providing written material in the range of languages used in a particular prison.

Health care

40.3

Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.

40.4

Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.

40.5

All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.

Medical and health care personnel

41.1

Every prison shall have the services of at least one qualified general medical practitioner.

41.2

Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.

41.3

Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly.

41.4

Every prison shall have personnel suitably trained in health care.

41.5

The services of qualified dentists and opticians shall be available to every prisoner.

Duties of the medical practitioner

42.1

The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.

42.2

The medical practitioner or a qualified nurse reporting to such a medical practitioner shall examine the prisoner if requested at release, and shall otherwise examine prisoners whenever necessary.

42.3

When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:

a.

observing the normal rules of medical confidentiality;

b.

diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;

c.

recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently;

d.

dealing with withdrawal symptoms resulting from use of drugs, medication or alcohol;

e.

identifying any psychological or other stress brought on by the fact of deprivation of liberty;

f.

isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment;

g.

ensuring that prisoners carrying the HIV virus are not isolated for that reason alone;

h.

noting physical or mental defects that might impede resettlement after release;

i.

determining the fitness of each prisoner to work and to exercise; and

j.

making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements.

Health care provision

46.1

Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.

46.2

Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.

16.   DETENTION OF MINORS AND FAMILIES

Legal basis: Return Directive — Article 17

1.

Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time.

2.

Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy.

3.

Minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age, and shall have, depending on the length of their stay, access to education.

4.

Unaccompanied minors shall as far as possible be provided with accommodation in institutions provided with personnel and facilities which take into account the needs of persons of their age.

5.

The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal.

The Return Directive allows for the detention of unaccompanied minors and of families with minors for the purpose of removal as a measure of last resort and for the shortest appropriate period of time, provided that specific safeguards are duly respected.

In addition to such safeguards set by Article 17 of the Return Directive, the principles of Article 15 of that Directive applicable to the general rules on detention must be respected, notably detention must only be used as a measure of last resort, a viable range of effective alternatives to detention must be available, and an individual assessment of each case must be conducted (see section 14). The best interests of the child must always be a primary consideration in the context of detention of minors and families, Member States are encouraged to involve child protection bodies in all matters related to detention and, where there are grounds for detention, everything possible must be done to ensure that a viable range of effective alternatives to detention for minors (both unaccompanied and with their families) is available and accessible.

The UNHCR (80) and the FRA (81) provide some examples of good practices on alternatives to detention for unaccompanied minors and families with children.

The Commission recommends that national legislation should not preclude the possibility to place minors in detention, where this is strictly necessary to ensure the execution of a final return decision, and insofar as less coercive measures cannot be applied effectively in the individual case.

The text of Article 17 of the Return Directive corresponds closely to the text of the CoE Guideline 11 ‘Children and families’. Further concrete guidance can be found in the commentary to this Guideline:

CoE Guideline 11 — Children and families

Commentary

1.

Paragraphs 1, 3 and 5 of this Guideline are inspired from the relevant provisions of the Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989 and ratified by all the Member States of the Council of Europe. With respect to paragraph 2, it could be recalled that the right to respect for family life granted under Article 8 ECHR also applies in the context of detention.

2.

Concerning the deprivation of liberty of children, Article 37 of the Convention on the Rights of the Child provides in particular that ‘arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’ (Article. 37(b). According to Article 20(1) of this Convention, ‘A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State’.

3.

Inspiration was also found in para. 38 of the United Nations Rules for the protection of juveniles deprived of their liberty, adopted by General Assembly Resolution 45/113 of 14 December 1990, which apply to any deprivation of liberty, understood as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority’ (para. 11, b). According to para. 38: ‘Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. Special attention should be given by the administration of the detention facilities to the education of juveniles of foreign origin or with particular cultural or ethnic needs. Juveniles who are illiterate or have cognitive or learning difficulties should have the right to special education’.

4.

The last paragraph reflects the guiding principle of the Convention on the rights of the child whose Article 3(1) states that ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. As a matter of course, this also applies to decisions concerning the holding of children facing removaI from the territory.

As regards detention of minors, the CPT standards provide for the following rules which should be respected by Member States whenever they apply — exceptionally and as a measure of last resort — detention:

CPT standards related to detention of minors — extracts

97.

The CPT considers that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a minor. Following the principle of the ‘best interests of the child’, as formulated in Article 3 of the United Nations Convention on the Rights of the Child, detention of children, including unaccompanied and separated children, is rarely justified and, in the Committee's view, can certainly not be motivated solely by the absence of residence status. When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest possible period of time; all efforts should be made to allow the immediate release of unaccompanied or separated children from a detention facility and their placement in more appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should apply whenever a child is detained, particularly in those cases where the children are separated from their parents or other carers, or are unaccompanied, without parents, carers or relatives.

98.

As soon as possible after the presence of a child becomes known to the authorities, a professionally qualified person should conduct an initial interview, in a language the child understands. An assessment should be made of the child's particular vulnerabilities, including from the standpoints of age, health, psychosocial factors and other protection needs, including those deriving from violence, trafficking or trauma. Unaccompanied or separated children deprived of their liberty should be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a guardian or legal representative. Review mechanisms should also be introduced to monitor the ongoing quality of the guardianship.

99.

Steps should be taken to ensure a regular presence of, and individual contact with, a social worker and a psychologist in establishments holding children in detention. Mixed-gender staffing is another safeguard against ill-treatment; the presence of both male and female staff can have a beneficial effect in terms of the custodial ethos and foster a degree of normality in a place of detention. Children deprived of their liberty should also be offered a range of constructive activities (with particular emphasis on enabling a child to continue his or her education).

100.

In order to limit the risk of exploitation, special arrangements should be made for living quarters that are suitable for children, for example, by separating them from adults, unless it is considered in the child's best interests not to do so. This would, for instance, be the case when children are in the company of their parents or other close relatives. In that case, every effort should be made to avoid splitting up the family.

131.

Effective complaints and inspection procedures are basic safeguards against ill-treatment in all places of detention, including detention centres for juveniles. Juveniles (as well as their parents or legal representatives) should have avenues of complaint open to them within the establishments' administrative system and should be entitled to address complaints — on a confidential basis — to an independent authority. Complaints procedures should be simple, effective and child-friendly, particularly regarding the language used. Juveniles (as well as their parents or legal representatives) should be entitled to seek legal advice about complaints and to benefit from free legal assistance when the interests of justice so require.

132.

The CPT also attaches particular importance to regular visits to all detention centres for juveniles by an independent body, such as a visiting committee, a judge, the children's Ombudsman or the National Preventive Mechanism (established under the Optional Protocol to the United Nations Convention against Torture — OPCAT) with authority to receive — and, if necessary, take action on — juveniles' complaints or complaints brought by their parents or legal representatives, to inspect the accommodation and facilities and to assess whether these establishments are operating in accordance with the requirements of national law and relevant international standards. Members of the inspection body should be proactive and enter into direct contact with juveniles, including by interviewing inmates in private.

17.   EMERGENCY SITUATIONS

Legal basis: Return Directive — Article 18

1.

In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2).

2.

When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist.

3.

Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.

Scope of possible derogations limited to three provisions: Article 18 provides for a possibility for Member States not to apply three detention-related provisions of the Directive — (i) the obligation to provide for a speedy initial judicial review of detention; (ii) the obligation to detain only in specialised facilities; and (iii) the obligation to provide separate accommodation guaranteeing adequate privacy to families — in emergency situations involving the sudden arrival of large numbers of irregular migrants. Derogations to other rules contained in the Return Directive are not possible.

Transposition into national law is a precondition for a possible application of the emergency clause: Article 18 describes and limits the situations covered, as well as the scope of possible derogations and information obligations to the Commission. If a Member State wishes to have the option to apply this safeguard clause in case of emergency situations, it must have properly transposed it beforehand (82) — as a possibility and in line with the criteria of Article 18 — into its national legislation. NB: contrary to safeguard clauses contained in regulations (for example those in the SBC related to the reintroduction of internal border control), safeguard clauses in Directives must be transposed into national law before they can be used.

Member States must inform the Commission when resorting to these measures and when these cease to apply. Such information should be transmitted by means of the usual official channels, i.e. via the Permanent Representation to the Secretariat-General of the European Commission.

18.   TRANSPOSITION, INTERPRETATION AND TRANSITIONAL ARRANGEMENTS

Direct effect of the Return Directive in case of insufficient or belated transposition: according to the doctrine developed by the ECJ, provisions of a directive which confer rights on individuals and which are sufficiently clear and unconditional become directly applicable as of the end of the time-limit for the implementation of the Directive. Many of the provisions of the Return Directive fulfil these requirements and have to be directly applied by national administrative and judicial authorities in those cases in which Member States have not transposed (or insufficiently transposed) certain provisions of the Directive. This applies in particular to the provisions related to:

respect for the principle of non-refoulement (Articles 5 and 9 of the Return Directive),

the requirement that persons to be returned should normally be provided with an appropriate period for voluntary departure of between seven and thirty days (Article 7 of the Return Directive),

limitations on the use of coercive measures in connection with forced returns (Article 8 of the Return Directive),

right of unaccompanied minors who are subject of return procedures to receive assistance by appropriate bodies other than the authorities enforcing return and the obligation on Member States to make sure that unaccompanied minors are only returned to a member of their family, a nominated guardian or adequate reception facilities in the State of return (Article 10 of the Return Directive),

limitations on the length of entry bans and need for individualised case by case examination (Article 11 of the Return Directive) — expressly confirmed by the judgment of the ECJ in Case C-297/12, Filev and Osmani (paragraph 55),

procedural safeguards, including the right to a written, reasoned return decision, as well as the right to an effective remedy and to legal and linguistic assistance (Articles 12 and 13 of the Return Directive),

limitations on the use of detention and maximum time limits for detention (Article 15 of the Return Directive) and right to human and dignified detention conditions (Article 16 of the Return Directive) — expressly confirmed by the judgment of the ECJ in Case C-61/11, El Dridi (paragraphs 46 and 47),

limitations and special safeguards relating to the detention of minors and families (Article 17 of the Return Directive).

Preliminary references to the ECJ: Article 267 TFEU gives the ECJ jurisdiction to give preliminary rulings concerning the interpretation and validity of the Return Directive. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal with regard to a person in detention, the ECJ shall act by means of an accelerated urgency procedure. Preliminary references have already played an important role for assuring a harmonised interpretation of several key provisions of the Return Directive.

Members of courts or tribunals in Member States are encouraged to make continued use of preliminary references and to ask for authentic interpretation to the ECJ whenever this appears necessary.

Transitional arrangements for cases/procedures related to periods before 24 December 2010: Member States must make sure that all persons covered by the scope of the Directive benefit from the substantive safeguards and rights accorded by the Directive as of 24 December 2010 (as of the accession date in case of new Member States). Whilst it may be legitimate to continue national return procedures launched in accordance with pre-transposition national legislation, this must not undermine in substance the rights afforded by the Directive, such as, for example, limitation on detention and use of coercive measures, procedural safeguards including right to a written decision and to appeal against it, priority for voluntary departure. For any return not already carried out by 24 December 2010, a written return decision must be issued in accordance with the terms of Article 12 of the Directive, and an effective remedy against this decision must be afforded in accordance with the terms of Article 13 of the Directive.

‘Historic’ entry bans issued before 24 December 2010 must be adapted to the requirements of the Return Directive (see section 11.9). Periods of detention completed before the rules in the Return Directive became applicable must be taken into account for the calculation of the overall maximum time limit provided for in the Return Directive (see section 14.4.2).

Introduction of a derogation from the scope at a later stage (after 2010): Member States may decide to make use of the derogation foreseen in Article 2 (‘border cases’ and criminal law cases) at a later stage. A change to national legislation must not have disadvantageous consequences with regard to those persons who were already able to avail themselves of the effects of the Return Directive (see section 2).

19.   SOURCES AND REFERENCE DOCUMENTS

This Handbook is based on the following sources:

1.

Compiled minutes of the Contact Group Return Directive.

2.

Extracts from relevant ECJ cases (keywords and name of Member State concerned in brackets):

Judgment of 30 November 2009, Kadzoev (C-357/09 PPU), ECLI:EU:C:2009:741 (detention, reasons for prolongation; link to asylum related detention — BG)

Judgment of 28 April 2011, El Dridi (C-61/11 PPU), ECLI:EU:C:2011:268 (criminalisation, penalisation of illegal stay by imprisonment — IT)

Judgment of 6 December 2011, Achughbabian (C-329/11), ECLI:EU:C:2011:807 (criminalisation, penalisation of illegal stay by imprisonment — FR)

Judgment of 6 December 2012, Sagor (C-430/11), ECLI:EU:C:2012:777 (criminalisation, penalisation of illegal stay by fine; expulsion order; house arrest — IT)

Order of 21 March 2013, Mbaye (C-522/11), ECLI:EU:C:2013:190 (criminalisation of illegal stay — IT)

Judgment of 30 May 2013, Arslan (C-534/11) ECLI:EU:C:2013:343 (return vs asylum related detention — CZ)

Judgment of 10 September 2013, G. and R. (C-383/13 PPU), ECLI:EU:C:2013:533 (right to be heard before prolonging detention — NL)

Judgment of 19 September 2013, Filev and Osmani (C-297/12), ECLI:EU:C:2013:569 (entry bans, need to determine ex officio length; historic entry bans — DE)

Judgment of 5 June 2014, Mahdi (C-146/14 PPU), ECLI:EU:C:2014:1320 (detention, reasons for prolongation and judicial supervision — BG)

Judgment of 3 July 2014, Da Silva (C-189/13), ECLI:EU:C:2014:2043 (criminalisation, illegal entry — FR)

Judgment of 17 July 2014, Bero (C-473/13) and Bouzalmate (C-514/13), ECLI:EU:C:2014:2095 (detention conditions, obligation to provide for specialised facilities — DE)

Judgment of 17 July 2014, Pham (C-474/13), ECLI:EU:C:2014:2096 (detention conditions — DE)

Judgment of 6 November 2014, Mukarubega (C-166/13), ECLI:EU:C:2014:2336 (right to be heard before issuing a return decision — FR)

Judgment of 11 December 2014Boudjlida (C-249/13), ECLI:EU:C:2014:2431 (right to be heard before issuing a return decision — FR)

Judgment of 18 December 2014, Abdida (C-562/13), ECLI:EU:C:2014:2453 (rights pending postponed return — BE)

Judgment of 23 April 2015, Zaizoune (C-38/14), ECLI:EU:C:2015:260 (obligation to issue return decision — ES)

Judgment of 11 June 2015, Zh. and O. (C-554/13), ECLI:EU:C:2015:377 (criteria for determining voluntary departure period — NL)

Judgment of 1 October 2015, Skerdjan Celaj (C-290/14), ECLI:EU:C:2015:640 (criminalisation of non-compliance with an entry ban — IT)

Judgment of 15 February 2016, J.N. (C-601/15 PPU), ECLI:EU:C:2016:84 (enforcement of return decision following a rejection of an application for international protection — NL)

Judgment of 7 June 2016, Affum (C-47/15), ECLI:EU:C:2016:408 (definition of illegal stay, criminalisation, illegal entry — FR)

Judgment of 15 March 2017, Al Chodor and others (C-528/15), ECLI:EU:C:2017:213 (definition of risk of absconding in Dublin procedures — CZ)

Judgment of 26 July 2017, Ouhrami (C-225/16), ECLI:EU:C:2017:590 (date of validity of entry ban — NL)

3.

The EU return acquis:

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

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals

Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air

Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC

Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders

Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC

Commission Recommendation of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council, C(2017) 1600

Communication from the Commission of 12 April 2017 to the European Parliament and to the Council, ‘The protection of children in migration’, COM(2017) 211 final.

4.

Relevant documents of the Council of Europe:

20 Guidelines on forced return, adopted by the Council of Europe Committee of Ministers on 4 May 2005 and commentaries (September 2005, ISBN 92-871-5809-6)

CPT standards (document CPT/Inf/E (2002) 1 — Rev. 2013)

CPT factsheet on immigration detention (document CPT/Inf(2017) 3 of March 2017)

Recommendation Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules (Adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies)

5.

Relevant documents of the European Union Agency on Fundamental Rights:

Guidance document on the fundamental rights considerations of apprehending migrants in an irregular situation, October 2012

Handbook on European law relating to asylum, borders and immigration, co-edited by FRA and ECtHR, 2014

Alternatives to detention for asylum seekers and people in return procedures, October 2015

Note — Fundamental rights of migrants in an irregular situation who are not removed, available at: http://fra.europa.eu/en/Non-removed-migrants-rights

European legal and policy framework on immigration detention of children, June 2017, available at: http://fra.europa.eu/en/publication/2017/child-migrant-detention.

6.

Reports of Schengen evaluations in the field of return

20.   ABBREVIATIONS

 

CFR: Charter of Fundamental Rights of the European Union

 

CoE: Council of Europe

 

ECHR: European Convention on Human Rights

 

ECtHR: European Court of Human Rights

 

ECJ: Court of Justice of the European Union

 

EEA: European Economic Area

 

FRA: European Union Agency for Fundamental Rights

 

Member States: Member States bound by the Return Directive (all EU Member States except UK and Ireland), as well as Switzerland, Norway, Iceland and Liechtenstein

 

SBC: Schengen Borders Code

 

SIC: Schengen Implementing Convention

 

SIS: Schengen Information System

 

TEU: Treaty on European Union

 

TFEU: Treaty on the Functioning of the European Union


(1)  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, p. 98).

(2)  C(2015) 6250.

(3)  C(2017) 1600 final.

(4)  Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p. 1).

(5)  By virtue of a special provision in the UK Accession Treaty, only those British nationals who are ‘United Kingdom nationals for European Union purposes’ are also citizens of the European Union.

(6)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77).

(7)  According to Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, a stateless person is ‘a person who is not considered as a national by any State under the operation of its law’.

(8)  Judgement of the Court of Justice of 7 June 2016, Affum, Case C-47/15, ECLI:EU:C:2016:408.

(9)  Judgment of the Court of Justice of 6 December 2011, Achughbabian, Case C-329/11, ECLI:EU:C:2011:807.

(10)  Judgment of the Court of Justice of 6 December 2012, Sagor, Case C-430/11, ECLI:EU:C:2012:777.

(11)  Judgment of the Court of Justice of 15 March 2017, Al Chodor and others, Case C-528/15, ECLI:EU:C:2017:213.

(12)  Article 2(n) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180, 29.6.2013, p. 31): ‘“risk of absconding” means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third- country national or a stateless person who is subject to a transfer procedure may abscond’.

(13)  This information may be obtained through the European Criminal Records Information System, established by Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (OJ L 93, 7.4.2009, p. 23), and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA (OJ L 93, 7.4.2009, p. 33). On 19 January 2016, the Commission put forward the proposal COM(2016) 7 final to facilitate the exchange of criminal records of non-EU citizens in the EU.

(14)  Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ L 180, 29.6.2013, p. 96).

(15)  Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ L 337, 20.12.2011, p. 9).

(16)  Unlike EU Member States, Switzerland, Norway, Iceland and Liechtenstein are not bound by EU directives on the basis of Article 288 TFEU, but only once they have accepted them and according to general public international law principles. Thus, contrary to EU Member States, Switzerland, Norway, Iceland and Liechtenstein are not bound by the ECJ case-law related to the transposition of directives into national law and are free to choose the modalities of the transposition of the obligation set out in the Return Directive (for instance by a direct reference to the text of the Directive) in compliance with their international obligations.

(17)  Judgment of the Court of Justice of 19 September 2013, Filev and Osmani, Case C-297/12, ECLI:EU:C:2013:569.

(18)  Following the codification of the Schengen Borders Code in 2016, reference to Article 13 of the Code shall be read as reference to Article 14 of Regulation (EU) 2016/399.

(19)  Council of Europe, European Convention on Extradition, 1957.

(20)  Judgment of the Court of Justice of 28 April 2011, El Dridi, Case C-61/11 PPU, ECLI:EU:C:2011:268.

(21)  Judgment of the ECJ of 23 April 2015, Zaizoune, Case C-38/14, ECLI:EU:C:2015:260.

(22)  United Nations, Convention Relating to the Status of Refugees, 1951.

(23)  Article 31(1) of the Convention Relating to the Status of Refugees: ‘1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

(24)  Judgment of the Court of Justice of 1 October 2015, Skerdjan Celaj, Case C-290/14, ECLI:EU:C:2015:640.

(25)  Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ L 168, 30.6.2009, p. 24). Denmark, Switzerland, Norway, Iceland and Liechtenstein are not bound by this Directive.

(26)  Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ L 261, 6.8.2004, p. 19).

(27)  Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 149, 2.6.2001, p. 34).

(28)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180, 29.6.2013, p. 31).

(29)  The examples provided are simplified for explanatory purposes. In practice every case must be evaluated based on the individual circumstances.

(30)  Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ L 239, 22.9.2000, p. 19).

(31)  Commission Recommendation C(2006) 5186 of 6 November 2006 establishing a common ‘Practical Handbook for Border Guards (Schengen Handbook)’ to be used by Member States' competent authorities when carrying out the border control of persons, and subsequent amendments.

(32)  This term is a broad ‘catch-all’ provision, which covers also those cases that are expressly excluded from the definition of ‘residence permit’ under Article 2(16)(b)(i) and (ii) of the SBC.

(33)  Commission Decision C(2010) 1620 of 19 March 2010 establishing the Handbook for the processing of visa applications and the modification of issued visas, and subsequent amendments.

(34)  Judgment of the Court of Justice of 15 February 2016, J.N., Case C-601/15 PPU, ECLI:EU:C:2016:84.

(35)  Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ L 157, 27.5.2014, p. 1).

(36)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44).

(37)  Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection (OJ L 132, 19.5.2011, p. 1).

(38)  Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ L 155, 18.6.2009, p. 17).

(39)  Council document 8829/16.

(40)  Council document 9979/16.

(41)  Judgment of the Court of Justice of 11 June 2015, Zh. and O., Case C-554/13, ECLI:EU:C:2015:377.

(42)  Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 60, 27.2.2004, p. 55).

(43)  Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ L 321, 6.12.2003, p. 26).

(44)  NB: this interpretation does not imply that unescorted removal is synonymous with voluntary departure. The term unescorted removal may also cover cases of forced return (removal) without police escort.

(45)  

COM(2016) 881 final.

(46)  Regulation (EU) 2016/1953 of the European Parliament and of the Council of 26 October 2016 on the establishment of a European travel document for the return of illegally staying third-country nationals, and repealing the Council Recommendation of 30 November 1994 (OJ L 311, 17.11.2016, p. 13).

(47)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180, 29.6.2013, p. 60).

(48)  Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders (OJ L 261, 6.8.2004, p. 28).

(49)  Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1).

(50)  United Nations, Convention on the Rights of the Child, 1989.

(51)  UNHCR-Unicef, Safe and Sound, 2014, available at: http://www.refworld.org/docid/5423da264.html

(52)  United Nations, General comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Art. 3, para. 1)*, 2013, available at: http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf

(53)  UNHCR, Guidelines on Determining the Best Interests of the Child, 2008, http://www.unhcr.org/4566b16b2.pdf

(54)  UNHCR, Field Handbook for the Implementation of UNHCR BID Guidelines, 2011, available at: http://www.refworld.org/pdfid/4e4a57d02.pdf

(55)  Council of Europe, Twenty Guidelines on Forced Return, 2005.

(56)  European Asylum Support Office, Age assessment practice in Europe, 2014, available at: https://www.easo.europa.eu/sites/default/files/public/EASO-Age-assessment-practice-in-Europe.pdf A new guidance document is being prepared.

(57)  United Nations, Guidelines for the alternative care of children, 2010, available at: http://www.refworld.org/docid/4c3acd162.html

(58)  Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381, 28.12.2006, p. 4).

(59)  COM(2009) 313 final.

(60)  Judgment of the Court of Justice of 17 November 2011, Gaydarov, Case C-430/10, ECLI:EU:C:2011:749.

(61)  Judgment of the Court of Justice of 26 July 2017, Ouhrami, Case C-225/16, ECLI:EU:C:2017:590.

(62)  Judgment of the Court of Justice of 10 September 2013, G. and R., Case C-383/13 PPU, ECLI:EU:C:2013:533.

(63)  Judgment of the Court of Justice of 11 December 2014Boudjlida, Case C-249/13, ECLI:EU:C:2014:2431.

(64)  Judgment of Court of Justice of 6 November 2014, Mukarubega, Case C-166/13, ECLI:EU:C:2014:2336.

(65)  United Nations, General Comment No 12 (2009): The right of the child to be heard, 2009, available at: http://www.refworld.org/docid/4ae562c52.html

(66)  COM(2015) 285 final.

(67)  Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ L 243, 15.9.2009, p. 1).

(68)  Judgment of the Court of Justice of 18 December 2014, Abdida, Case C-562/13, ECLI:EU:C:2014:2453.

(69)  Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ L 326, 13.12.2005, p. 13), repealed by Directive 2013/32/EU.

(70)  Judgment of the European Court of Human Rights of 5 February 2002, Čonka v Belgium, application No 51564/99.

(71)  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ L 31, 6.2.2003, p. 18).

(72)  United Nations, General comment No 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 2005, available at: http://www.refworld.org/docid/42dd174b4.html

(73)  Judgment of the Court of Justice of 5 June 2014, Mahdi, Case C-146/14 PPU, ECLI:EU:C:2014:1320.

(74)  Judgment of the Court of Justice of 30 November 2009, Kadzoev, Case C-357/09 PPU, ECLI:EU:C:2009:741.

(75)  UNHCR, Options paper 2: Options for governments on open reception and alternatives to detention, 2015, available at: http://www.unhcr.org/protection/detention/5538e53d9/unhcr-options-paper-2-options-governments-open-reception-alternatives-detention.html

(76)  Judgment of the Court of Justice of 30 May 2013, Arslan, Case C-534/11, ECLI:EU:C:2013:343.

(77)  An overview on the different time-limits applicable under national law can be found at: http://ec.europa.eu/smart-regulation/evaluation/search/download.do?documentId=10737855 (pages 44-50). This overview reflects the situation of December 2013 and some national rules have changed in the meantime.

(78)  Judgment of 17 July 2014, Bero, Case C-473/13, and Bouzalmate, Case C-514/13, ECLI:EU:C:2014:2095.

(79)  Judgment of the Court of Justice of 17 July 2014, Pham, Case C-474/13, ECLI:EU:C:2014:2096.

(80)  UNHCR, Options paper 1: Options for governments on care arrangements and alternatives to detention for children and families, 2015, available at: http://www.unhcr.org/553f58509.pdf

(81)  European Union Agency for Fundamental Rights, European legal and policy framework on immigration detention of children, 2017, available at: http://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-immigration-detention-children_en.pdf

(82)  As regards the specific situation of Switzerland, Norway, Iceland and Liechtenstein: see related footnote in section 2 above.