Recommendation 2017/432 - Making returns more effective when implementing the Directive 2008/115/EC - Main contents

EN

Official Journal of the European Union

L 66/15

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

The Schengen Evaluation Mechanism (2) and the information collected through the European Migration Network (3) have allowed for a comprehensive assessment of how Member States implement the Union policy on return.

The evaluations indicate that the margins of discretion left to the Member States by Directive 2008/115/EC led to an inconsistent transposition in national legislations, with a negative impact on the effectiveness of the Union return policy.

Since the entry into force of Directive 2008/115/EC, and in the light of the increasing migratory pressure on the Member States, the challenges that the Union return policy needs to respond to have increased and brought this aspect of the European comprehensive migration policy to the forefront. In its Conclusions of 20-21 October 2016 (4), the European Council called for reinforcing national administrative processes for returns.

The Malta Declaration of Heads of State or Government (5) of 3 February 2017 highlighted the need for a review of EU return policy based on an objective analysis of the way in which the legal, operational, financial and practical tools available at Union and national level are applied. It welcomed the Commission's intention to rapidly present an updated EU Action Plan on Return and to provide guidance for more operational returns by the EU and Member States and effective readmission based upon the existing acquis.

In view of the current increase in the number of third-country nationals illegally entering and staying in the Member States, and in order to ensure appropriate capacity to protect those in need, it is necessary to use to the full extent the flexibility provided for in Directive 2008/115/EC. A more effective implementation of that Directive would reduce possibilities of misuse of procedures and remove inefficiencies, while ensuring the protection of fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union.

This Recommendation provides guidance on how the provisions of Directive 2008/115/EC should be used for achieving more effective return procedures, and call on the Member States to take the necessary measures to remove legal and practical obstacles to return.

An effective Union return policy requires efficient and proportionate measures for the apprehension and identification of illegally staying third-country nationals, swift processing of their cases, and adequate capacity to ensure their presence in view of return.

Organising return requires a streamlined and well integrated organisation of multi-disciplinary competences at national level. In addition, it demands procedures and instruments that allow information to be made promptly available to the competent authorities, as well as cooperation between all actors that are involved in the different procedures.

Multi-disciplinary trained and competent staff gathering all relevant competences is needed to ensure that national authorities are able to respond to the needs, particularly in circumstances where Member States are confronted with a significant burden in implementing the obligation to return illegally staying third-country nationals. In organising this integrated and coordinated approach, Member States should make full use of the available Union financial instruments, programmes and projects in the field of return, in particular of the Asylum, Migration and Integration Fund. In this context, the Member States should also take into account the migratory pressure that the competent authorities are dealing with.

In accordance with Article 6(1) of Directive 2008/115/EC, the Member States should systematically issue a return decision to third-country nationals who are staying illegally on their territory. The legislation and the practice in the Member States does not give full effect to this obligation in all circumstances, thereby undermining the effectiveness of the Union return system. For instance, certain Member States do not issue return decisions following a negative decision on an asylum claim or a residence permit, or do not issue such decisions to illegally staying third-country nationals who do not hold a valid identity or travel document.

Depending on the institutional set-up of the Member States, in particular when different authorities deal with the process, a return decision is not necessarily or immediately followed by a request to the authorities of third-countries to verify the identity of the illegally staying third-country national and to deliver a valid travel document.

In accordance with Article 13 of the Schengen Borders Code (6), a person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC.

Directive 2008/115/EC establishes that the state of health of the third-country nationals concerned shall be taken into account when implementing that Directive, and that emergency health care and essential treatment of illness must be provided pending return. It is however essential to ensure that removals of illegally staying third-country nationals are enforced and measures are taken to prevent behaviour aimed at hampering or preventing return, such as false new medical claims. Moreover, it is also necessary to put in place measures tackling in an efficient manner asylum applications made merely to delay or frustrate the enforcement of return decisions.

Directive 2008/115/EC, while obliging the third-country national illegally staying to leave the Union, requires return decisions to be enforced only by the issuing Member States. A return process can be launched in every Member State that apprehends the same illegally staying third-country national. Mutual recognition of return decision, as provided for by Council Directive 2001/40/EC (7) and Council Decision 2004/191/EC (8), would accelerate return process and deter unauthorised secondary movements within the Union.

Detention can be an essential element for enhancing the effectiveness of the Union's return system, which should only be used if no other sufficient but less coercive measures can be applied effectively in accordance with Article 15(1) of Directive 2008/115/EC. In particular, where necessary, to ensure that illegally staying third-country nationals do not abscond, detention can allow for a successful preparation and organisation of return operations.

The maximum duration period of detention currently used by several Member States is significantly shorter than the one allowed by Directive 2008/115/EC and which is needed to complete the return procedure successfully. These short periods of detention are precluding effective removals.

Deadlines for lodging appeals against decisions related to return diverge significantly among Member States, ranging from few days to one month or more. In compliance with fundamental rights, the deadline should provide enough time to ensure access to an effective remedy, while taking into account that long deadlines can have a detrimental effect on return procedures.

Irregularly staying third-country nationals should be granted the right to be heard by the competent authorities before any individual measure which would affect him or her is taken.

Under Directive 2008/115/EC, an automatic suspensive effect of appeals against return decisions should be granted when there is a risk that the third-country national concerned would be exposed to a real risk of ill-treatment in case of return, in violation of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, as interpreted by the Court of Justice of the European Union (9).

A large number of Member States conduct repetitive assessments of the risk of refoulement all along the different phases of the asylum and return procedures, which can cause the unnecessary delays in the return of illegally staying third-country nationals.

Return of an unaccompanied minor to the third country of origin and reunification with the family may be in the best interests of the child. The prohibition to issue return decisions to unaccompanied minors, which exists in the national legislation of several Member States, does not give full effect to the Member States' obligation to take due account of the child's best interests, and to pay attention to the circumstances of each individual case. Such prohibitions can create unintended consequences for illegal immigration, inciting unaccompanied minors to embark on perilous journeys in order to reach the Union.

Decisions on the legal status and on the return of unaccompanied minors should always be based on individual, multi-disciplinary and robust assessments of their best interests, including family tracing and home assessment. Such assessment should be adequately documented.

In line with Article 17 of Directive 2008/115/EC which defines the conditions under which Member States can use detention in relation to unaccompanied minors and of families with minors as a measure of last resort and for the shortest appropriate period of time, Member States should ensure the availability of alternatives to detention for children. Where however, no such alternatives exist, an absolute prohibition of detention in such cases, may not give full effect to the obligation to take all necessary measures to ensure return, leading to annulment of return operations due to absconding.

Pending the adoption of proposal for a Regulation of the European Parliament and of the Council on the use of the Schengen Information System for the return of illegally staying third-country nationals (10), Member States should make full use of the possibility to enter an alert on entry ban in accordance with Article 24(3) of Regulation (EC) No 1987/2006 of the European Parliament and of the Council (11).

This Recommendation should be addressed to all Member States bound by Directive 2008/115/EC.

Member States should instruct their national authorities competent for carrying out return-related tasks to apply this Recommendation when performing their duties.

This Recommendation complies with the fundamental rights and the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, this Recommendation ensures the full respect for human dignity and the application of Articles 1, 4, 14, 18, 19, 24 and 47 of the Charter and has to be implemented accordingly,

(1)

To address the procedural, technical, and operational obstacles to more effective returns, Member States should by 1 June 2017 reinforce their capacity to carry out the return of illegally staying third-country nationals by ensuring an integrated and coordinated approach.

(2)

The objectives of such an integrated and coordinated approach in the area of return should be to:

(3)

The integrated and coordinated approach in the area of return should fulfil, in particular, the following tasks:

(4)

Member States should ensure that units or bodies tasked to ensure the integrated and coordinated approach are allocated all the necessary human, financial and material resources.

(5)

For the purpose of ensuring that return decisions are systematically issued to third-country nationals who either do not have or no longer have a right to stay in the European Union, Member States should:

(6)

Member States should ensure that return decisions have unlimited duration, so that they can be enforced at any moment without the need to re-launch return procedures after a certain period of time. This should be without prejudice to the obligation to take into account any change in the individual situation of the third-country nationals concerned, including the risk of refoulement.

(7)

Member States should systematically introduce in return decisions the information that third-country nationals must leave the territory of the Member State to reach a third country, to deter and prevent unauthorised secondary movements.

(8)

Member States should make use of the derogation provided for under Article 2(2)(a) of Directive 2008/115/EC when this can provide for more effective procedures, in particular when facing significant migratory pressure.

(9)

For the purpose of ensuring swift returns of illegally staying third-country nationals, Member States should:

(10)

For the purpose of effectively ensuring removals of illegally staying third-country nationals, Member States should:

(11)

In relation to illegally staying third-country nationals who intentionally obstruct the return processes, Member States should consider using sanctions in accordance with national law. These sanctions should be effective, proportionate and dissuasive and should not impair the achievement of the objective of Directive 2008/115/EC.

(12)

Member States should:

(13)

To ensure respect of the rights of the child, and taking fully into account the best interests of the child and family life under Article 5 of Directive 2008/115/EC, Member States should:

(14)

In respect of the fundamental rights and of the conditions set by Directive 2008/115/EC, Member States should not preclude in their national legislation the possibility to place minors in detention, where this is strictly necessary to ensure the execution of a final return decision insofar as Member States are not able to ensure less coercive measures than detention that can be applied effectively in view of ensuring effective return.

(15)

Each of the following objective circumstances should constitute a rebuttable presumption that there is a risk of absconding:

(16)

Member States should provide that the following criteria are taken into due account as an indication that an illegally staying third-country nationals poses a risk of absconding:

(17)

Member States should only grant voluntary departure following a request by the third-country national concerned, while ensuring that the third-country national is well informed of the possibility of submitting such an application.

(18)

Member States should provide in the return decision for the shortest possible period for voluntary departure needed to organise and proceed with the return, taking into account the individual circumstances of the case.

(19)

In determining the duration of the period for voluntary departure, Member States should assess the individual circumstances of the case, in particular the prospects of return and the willingness of the illegally staying third-country national to cooperate with competent authorities in view of return.

(20)

A period longer than seven days should only be granted when the illegally staying third-country national actively cooperate in view of return.

(21)

No period for voluntary departure should be granted in the cases provided for in Article 7(4) of Directive 2008/115/EC, notably when the illegally staying third-country poses a risk of absconding as provided for in points 15 and 16 of this Recommendation and in cases of previous convictions for serious criminal offences in other Member States.

(22)

Member States should have operational assisted voluntary return programmes by 1 June 2017, which should be in line with the common standards on Assisted Voluntary Return and Reintegration Programmes developed by the Commission in cooperation with Member States and endorsed by the Council (14).

(23)

Member States should take action to improve their process of disseminating information on voluntary return and assisted voluntary return programmes to illegally staying third-country nationals, in cooperation with national education, social and health services.

(24)

For the purpose of making full use of the entry bans, Member States should: