The European Union Returns Directive and its Compatibility with International Human Rights Law

Analysis of Return Decision, Entry Ban, Detention, and Removal


The book undertakes a thorough human rights assessment of the EU Returns Directive. The overarching human rights framework, which circumscribes states prerogatives in the context of expulsion, builds upon obligations derived from the principle of non-refoulement; the right to life, respect for family and private life, effective remedy, basic social rights; the prohibition of torture and ill-treatment; and protection against arbitrary detention and collective expulsion. Based on this assessment, Majcher explores several protection gaps in the EU return policy which may result in violations of migrants’ rights and highlights how the provisions of the Directive should be implemented in line with member states’ human rights obligations. Informed by this assessment, the book discusses amendments to the Directive, proposed by the European Commission in September 2018.

“By examining the European Union (EU) Returns Directive in the light of international and European human rights law, Izabella Majcher thoroughly explores and analyses the requirements the EU member states’ authorities must guarantee migrants in an irregular situation when they adopt and implement return decisions, entry bans, pre-removal detention, and removal.” Marie-Laure Basilien-Gainche, Professor of public international law, University Jean Moulin Lyon 3, Honorary member of the Institut universitaire de France

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Izabella Majcher, Ph.D. (Graduate Institute of International and Development Studies, Geneva, 2017), is a researcher at the Global Detention Project and visitor to immigration detainees in Geneva with the Ligue Suisse des Droits de l’Homme. She has published widely on the EU returns policy and has experience in various international fora (UN system, diplomatic representations, and NGOs).

Abbreviations and Country Codes

Part 1

1 The Returns Directive against the Background of International and EU Human Rights Law: Setting the Scene
 1.1 The Returns Directive
  1.1.1 Presentation of the Returns Directive
  1.1.2 Instruments Required for the Implementation of the Returns Directive
  1.1.3 The Returns Directive within the EU Asylum and Immigration Policy
 1.2 Sources of the Human Rights Protection in the Context of Expulsion
  1.2.1 International Human Rights Law
  1.2.2 EU Human Rights Law
 1.3 The Need for a Human Rights Assessment of the Returns Directive in the Context of the Recast Process

Part 2
Return Decision
Introduction: The Scheme of Return under EU Law

2 Human Rights Impediments to Return
 2.1 Introduction
 2.2 The Principle of Non-Refoulement
  2.2.1 The Scope of the Principle of Non-Refoulement
  2.2.2 Implementation of the Principle of Non-Refoulement
 2.3 Family and Private Life
  2.3.1 The Scope of the Concepts of Family and Private Life
  2.3.2 The Implementation of the Right to Respect for Family and Private Life
 2.4 Conclusion
3 Procedural Safeguards
 3.1 Introduction
 3.2 Prohibition of Collective Expulsion
 3.3 The Right to Be Heard Prior to Adoption of the Return Decision
 3.4 Effective Remedy
  3.4.1 Accessibility of Remedy
  3.4.2 Effectiveness of Remedy
 3.5 Additional Child-Specific Safeguards
  3.5.1 The Right to Be Heard
  3.5.2 The Guardianship Assistance for Unaccompanied Children
 3.6 Conclusion
4 Social Rights Pending Return
 4.1 Introduction
 4.2 Health Care
 4.3 Education
 4.4 Adequate Standard of Living
  4.4.1 Basic Conditions of Subsistence Addressed in the Preamble of the Directive
  4.4.2 Can Destitution Entail a Duty to Regularise?
 4.5 Conclusion

Conclusion: Legal Limbo for Non-Deportable People

Part 3
Re-Entry Ban
Introduction: Entry Ban as Pan-European Effect of Return Decision

5 Entry Ban in the Light of the Principle of Proportionality
 5.1 Introduction
 5.2 The Nature of Entry Ban
 5.3 The Schengen-Wide Character of Entry Ban
 5.4 Conclusion
6 Human Rights Impediments to Entry Ban
 6.1 Introduction
 6.2 The Principle of Non-Refoulement
  6.2.1 Endorsement of the Principle of Non-Refoulement in Relation to Entry Ban
  6.2.2 Implementation of the Principle of Non-Refoulement in Relation to Entry Ban
 6.3 Family and Private Life
 6.4 Conclusion
7 Protection of Personal Data Stored in a SIS Alert
 7.1 Introduction
 7.2 The Right to Data Protection
  7.2.1 The Right to Information
  7.2.2 The Right of Access
  7.2.3 The Right to Correction and Deletion of Data
  7.2.4 The Right to a Remedy
 7.3 The Right to Private Life
 7.4 Conclusion

Conclusion: Schengen-Wide Entry Ban: a Triple Peine?

Part 4
Pre-Removal Detention
Introduction: Immigration Detention in the Light of the Prohibition of Arbitrary Detention

8 Permissibility of Detention
 8.1 Introduction
 8.2 Lawfulness of Detention
  8.2.1 Procedural Requirements: the Rights of the Defence
  8.2.2 Substantive Requirements: the Grounds for Detention
 8.3 Necessity and Proportionality of Detention
  8.3.1 Alternatives to Detention
  8.3.2 The Rule of Non-Detention of Children
 8.4 Length of Detention
  8.4.1 The Maximum Permissible Duration of Detention
  8.4.2 Risk of Re-Detention upon the Expiry of the Permissible Length of Detention
 8.5 Detention at the Border: Out of the Directive’s Safeguards?
 8.6 Conclusion
9 Procedural Safeguards
 9.1 Introduction
 9.2 Review of Detention
  9.2.1 Accessibility of Review
  9.2.2 Effectiveness of Review
 9.3 Compensation for Unlawful Detention
 9.4 Conclusion
10 Conditions of Detention
 10.1 Introduction
 10.2 Place of Detention and Separation of Different Categories of Detainees
 10.3 Treatment in Detention and Material Conditions
 10.4 Specific Categories of Detainees
  10.4.1 Children
  10.4.2 Other Vulnerable Persons
 10.5 Contact with the Outside World and Independent Monitoring
 10.6 Complaint Mechanisms and Effective Investigation
 10.7 Conclusion

Conclusion: Externalisation of Immigration Detention

Part 5
Enforcement of Return
Introduction: Enforcement of the Return Decision as the Final Stage of the Return Process

11 Mandatory (“Voluntary”) Return
 11.1 Introduction
 11.2 “Voluntary” Departure Period
 11.3 Assisted Voluntary Return Programmes and Ambiguous Role of the IOM
 11.4 Conclusion
12 Forcible Return
 12.1 Introduction
 12.2 Removal
  12.2.1 Returnee’s Medical Condition
  12.2.2 The Use of Force and Means of Restraint
  12.2.3 Deportation Personnel
  12.2.4 Independent Monitoring
  12.2.5 Complaint Mechanisms and Effective Investigation
 12.3 Joint Removal Operations
  12.3.1 Joint Removal Flights under the Council Decision 2004/573
  12.3.2 Joint Return Operations Coordinated by Frontex
 12.4 Conclusion
13 Removal to a Transit Country Based on Readmission Agreements
 13.1 Introduction
 13.2 Indirect Refoulement
  13.2.1 The Concept of Safe Third Country
  13.2.2 Removal to a Transit Country under the Returns Directive
 13.3 Collective Expulsion
 13.4 Conclusion

Conclusion: Post-Return Monitoring: a Missing Element

Part 6
14 The Returns Directive: Effectiveness of Return vs. Human Rights Protection
 14.1 Critical Overview of the EU Return Process
 14.2 Return Procedures against the Backdrop of International and EU Human Rights Law
  14.2.1 Risks to Human Rights Protection
  14.2.2 Upholding Human Rights Protection
 14.3 Way Forward
  14.3.1 The Recast of the Returns Directive
  14.3.2 The Implementation in line with States’ Human Rights Obligations

Annex 1 Ratifications of International Instruments: United Nations
Annex 2 Ratifications of International Instruments: Council of Europe
Annex 3 Reservations
Annex 4 Domestic Legislation Transposing the Returns Directive
Annex 5 Return Decisions 2012–2018
Annex 6 Entry Bans 2009–2013
Annex 7 Entry Bans in 2013
Annex 8 Detention Orders in 2013
Annex 9 Maximum Length of Detention Prior to and after the Transposition of the Directive
Annex 10 Removals 2012–2018
Annex 11 Voluntary Returns (Numbers and Percentage) 2014–2017
Annex 12 Assisted Returns (Numbers and Percentage) 2014–2017
Annex 13 Forcible Returns (Numbers and Percentage) 2014–2017
Annex 14 Frontex’s Return Operations 2006–2017


Academics researching EU policy targeting undocumented migrants and their rights and practitioners, including lawyers, experts, non-governmental and inter-governmental organizations, and domestic and EU policy-makers in the field of migration law and policy.
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