The purpose of this article is to analyse the EU policy on return of illegally staying third-country nationals, focusing in particular on the draft EU legislation: the Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals (COM/2005/391). This paper studies the context, the objectives and the most relevant measures of the proposed Directive in order to identify its critical juridical aspects as regards the fundamental rights of third-country nationals. It analyses the on-going negotiations for its adoption, considering in particular the exercise of co-decision procedure, which is new in this policy domain, and the link with the EU Return Fund, to see how the EU inter-institutional dynamics influence the establishment of provisions regulating the rights and status of immigrants subject to a return procedure. The current findings show that the adoption of the proposed Directive is not an easy exercise: the issue is very sensitive and the on-going negotiations are long and difficult. Other institutions and various NGOs support the harmonisation process but criticise a number of provisions of the draft measure. EU institutions urgently need to find a strategy that could lead to the necessary agreement for the adoption of a 'clear, fair and transparent common procedure respecting fundamental rights'.