Illegal migration: the “Returns” Directive in the recent case-law of the ECJ

by: Rosa Raffaelli

The judgment of the ECJ in the Achughbabian case, which follows closely the recently issued El Dridi judgment, has further clarified the scope of application of the Returns Directive (Directive 2008/115/EC).

The Directive, adopted under the co-decision procedure by the European Parliament and the Council, aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).
The Directive therefore requires States to issue a return decision to any irregularly staying third-country national, save in exceptional circumstances (Article 6).

The return decision must – as a general rule – include a period for voluntary return of between 7 and 30 days: during this period, the immigrant may not be forcibly expelled but he/she is expected to leave the national territory “voluntarily.” If the immigrant does not comply with the order, or if (exceptionally) no period for voluntary return is granted, States must take all necessary measures to enforce the return decision, including, if strictly necessary, through coercive measures (Article 8).

While the return procedure is ongoing, the third country national may also be detained, if less coercive measures appear insufficient to ensure the positive outcome of the procedure. Articles 15 and 16 provide for a number of guarantees concerning such detention, including a limit on its maximum length (6 months, exceptionally to be extended to a maximum of 18) and the possibility for judicial review, as well as establishing the principles according to which detention may only last as long as there is a reasonable prospect of removal and is to take place in specialized detention facilities. The Directive also provides for the possibility of issuing re-entry bans, lasting for up to 5 years, which are effective on the whole territory of the EU.

The compromise leading to the adoption of the directive was extremely difficult to achieve – so much so that the European Parliament, in order to encourage States to find an acceptable compromise, “froze” the European Return Fund until a directive was approved on the issue. Moreover, the final outcome clearly left many member States unsatisfied, as emerges from the low level of implementation of the Directive even after the deadline for its transposition expired (in December 2010).

Interested parties were, however, left with the possibility of raising the issue of the compatibility of national measures applicable to them with the EU Directive, leading to a surprising number of requests for preliminary rulings being filed to the ECJ.
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