Common system for the return of third-country nationals staying illegally in the Union (Return Regulation)
The European Parliament adopted by 418 votes to 218 votes against and 30 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council establishing a common system for the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of the European Parliament and the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC.
Parliament adopted its position at first reading by amending the Commission's proposal as follows:
Objective
The regulation establishes a common system for the effective return of third-country nationals staying illegally on the territory of the Member States, in accordance with the fundamental rights recognised by the Charter of Fundamental Rights of the European Union and the general principles of Union law, as well as applicable international obligations, particularly in the field of human rights. It is based on a common return procedure, effective cooperation with third countries, obligations for third-country nationals residing irregularly, a set of tools for managing effective returns, including measures to encourage returns, and cooperation between Member States.
Return decision
The competent authorities of Member States will issue a return decision concerning any third-country national residing illegally in their territory, stating or imposing an obligation to leave the territory of the Member States. Return decisions must: (a) set a departure period, not exceeding 30 days, by which time the third-country national must have left the territory of the Member States at the latest; or (b) state that the third-country national must leave the territory of the Member States immediately.
Removal
Member States will take all necessary measures to remove a third-country national: (a) when they have failed to comply with the obligation to leave the territory; (b) when they fail to cooperate with the authorities; (c) when they travel to another Member State without authorisation. When a removal order is issued, it must be in writing. The third-country national must be informed about available legal remedies and time-limits to seek those remedies. The decision ordering the removal will be notified to the third-country national as soon as possible.
Obligation to cooperate
Third-country nationals must comply with the obligation to leave the territory of the Member States and must cooperate with the competent authorities of the Member States at all stages of the return procedure. They must provide the competent authorities with information on any changes to their personal circumstances as soon as possible. Without prejudice to the obligation to leave the territory of the Member States, third-country nationals must, in particular:
- remain available to the competent authorities in the territory of the Member State competent for the return procedure, refrain from absconding, including to another Member State, and present themselves at departure for return transport according to the arrangements laid down by the competent authority;
- not to obstruct, either physically or verbally, the return;
- provide the competent authorities with an identity or travel document; they may not destroy identity documents, use pseudonyms with fraudulent intent, communicate other false information or mislead the authorities;
- provide information on the third countries transited, the travel routes they have taken or other third countries with which they may have other connections which could facilitate their return.
In order to prepare for and ensure an effective return or to further encourage compliance with the obligations to leave the territory and to cooperate, Member States may require third-country nationals to: a) remain in a geographical area within the territory of the Member State, in which they may move freely; b) reside at a specific address or in a place designated by the competent authorities; c) appear before the competent authorities at specific times, in person or by other means provided for by national law.
In the event of non-compliance with the obligation to cooperate, Member States may, for example, impose on the third-country national concerned the refusal or reduction of certain benefits and allowances, the refusal or withdrawal of a work permit, the extension of the duration of an entry ban, criminal or financial penalties.
Investigation measures
National authorities may conduct specific investigative measures to prepare for or ensure an effective return. These measures may include searching third-country nationals, residences, or other relevant premises, subject to judicial or administrative authorisation, as well as searching and seizing personal belongings and electronic devices. All such measures must respect fundamental rights and remain subject to the safeguards and remedies provided for by Union and national law.
Detention
In order to prepare their return, they may be detained, based on an individual assessment, for example if they are not cooperating, present a risk of absconding or pose a security risk. Detention will have to be ordered by an administrative or judicial authority, and may last up to 24 months. Up to six-month extension in total will be possible if circumstances change, new information appears, or cooperation with a third country improves. Alternatives to detention, such as a financial guarantee or electronic monitoring, can also be imposed.
Returns to third countries
The new rules extend the possibilities for Member States to ensure returns to third countries through additional tools. It will be possible to put in place specific agreements or arrangements with third countries to give Member States greater flexibility regarding returns, provided that international human rights standards and, in case of removal, the principle of non-refoulement are respected by the third country concerned. Unaccompanied minors will not be returned to a third country with which there is an agreement or arrangement.