Recommendation 2017/2338 - Common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return-related tasks - Main contents

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:

HAS ADOPTED THIS RECOMMENDATION:

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

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’:

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

Further clarification:

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:

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:

Further clarification:

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:

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:

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:

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:

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:

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:

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:

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:

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

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:

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:

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:

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:

Further clarification:

2.3.   Criminal law and extradition cases

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

Further clarification:

• 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:

• 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)).

Further clarification:

• 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:

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:

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:

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:

Practical examples:

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:

Practical example:

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

Legal basis: Return Directive — Article 6(3)

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:

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:

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:

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:

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:

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)

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:

[…]

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:

[…]

• 3. 

  IN-FLIGHT PROCEDURE

[…]

3.2.   Use of coercive measures

Coercive measures shall be used as follows:

3.3.   Medical personnel and interpreters

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

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:

[…]

• 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:

7.2.   Transit by air

Legal basis: Directive 2003/110/EC

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

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)

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:

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

• 9. 

  POSTPONEMENT OF REMOVAL

Legal basis: Return Directive — Article 9

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:

• 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.

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:

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:

• 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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

12.3.   Form of decisions and translation

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

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.

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).

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)

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.

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)

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).

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:

Member States may also:

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:

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:

• 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:

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:

Concrete examples:

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:

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)

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

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:

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):

Further clarifications:

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

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:

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:

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

CPT standards on immigration detention — extracts

2006 European Prison Rules — Extracts

Accommodation

Hygiene

Clothing and bedding

Nutrition

Prison regime

Exercise and recreation

Freedom of thought, conscience and religion

Ethnic or linguistic minorities

Health care

Medical and health care personnel

Duties of the medical practitioner

Health care provision

• 16. 

  DETENTION OF MINORS AND FAMILIES

Legal basis: Return Directive — Article 17

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

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

• 17. 

  EMERGENCY SITUATIONS

Legal basis: Return Directive — Article 18

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:

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:

• 20. 

  ABBREVIATIONS

• (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.

This summary has been adopted from EUR-Lex.