The European Commission’s Proposal for a Return Regulation: A Perplexing Expulsion Exercise

Blog Post by Professor Elspeth Guild, University of Liverpool

When the new European Commission took up office in 2024, the Commission’s President, Ursula von der Leyen, announced that the Commission would develop a new common approach on return (the EU term for expulsion). In her mission letter to the new Commissioner for Internal Affairs and Migration, Magnus Brunner, (responsible for expulsion) she called on him to “develop a new common approach on the return of irregular migrants, with new modern rules to speed up and simplify the process, [and] ensure that returns of those who have no right to stay take place in a dignified manner”. Since then, the EU has been waiting for the new approach.

On 11 March a draft proposal for a regulation for a common system for the return of third country nationals staying illegally in the EU was issued (COM(2025)101§ final). At the time of writing, we are still awaiting what should have been the accompanying Staff Working Document setting out the background to the proposal which should provide the factual elements on which the proposal is based. In this blog I will examine some of the key features of the proposal which is intended to replace the current Return Directive dating from 2008. The existing measure was the subject of much academic criticism during its passage through the legislative process and has given rise to more than 60 judgments from the Court of Justice (CJEU), mainly on procedural guarantees and detention. The new proposal is likely also to stir up substantial controversy and if adopted result in even more work for the CJEU. Among the key issues of the proposal which are likely to give rise to discussion are:

1. A widening of the definition of a country of return to include “a third country with which there is an agreement or arrangement on the basis of which the third-country national is accepted” reminiscent of the UK-Rwanda Agreement (Article 4);
2. The inversion in the text of the relationship of voluntary return and coercive return – a move which seems to privilege the former; this means that rather than allowing individuals who are subject to an expulsion order to arrange their affairs and leave voluntarily, as a preferred option, coercive return which usually includes detention appears to be privileged (Section 4 and Article 13);
3. A duty on Member States to issue an expulsion decision when taking a decision which ends legal stay (Article 7(6);
4. The emphasis in intra-Member State movement of persons subject to return decisions taken by other Member States and the designation of three alternative ways to deal with the person: transfer to the first Member State under new Article 23a Schengen Borders Code; bilaterial agreements or arrangements among Member States; mutual recognition of return decisions to be carried out by enforcing Member States with compensation from issuing Member State (Articles 8 and 9);
5. Extending entry bans to ten years renewable (Article 11);
6. In the context of mutual recognition of return decisions, reliance on assessments made in the first Member State with a residual duty to take in account other circumstances if the person to be expelled raises them (Article 12);
7. An enhanced role for Frontex in returns (Article 36 et seq);
8. No suspensive effect of appeal rights for those to be returned on security risk grounds (Article 16);
9. An opaque provision permitting Member States to send people to third countries on the basis of agreements or arrangements under procedures set out in the agreement or arrangement (Article 17);
10. An effective remedy against return decisions taken under Article 7, 10 and 12(2) (but not Article 17); but there is no suspensive effect as regards the exercise of an appeal right after the end of the period for appeal; to avoid immediate removal, the individual will need to make a specific application for suspensive effect to the tribunal (Articles 27 and 28);
11. New detention provisions with an extension for 24 months (Article 32);
12. Wide new personal data sharing provisions applicable not only among Member States but also with third countries (Articles 38 et seq).

This list of concerns regarding the proposal covers the large issues where there appears to be a tension with EU fundamental rights obligations.

On the more positive side, there are enhanced protections for unaccompanied minors, persons with vulnerabilities and provisions on access to legal assistance and representation.

A key question regarding the proposal is its proportionality. According to Eurostat, cited in the EPRS Briefing on the Planned Revision of February 2025, in 2023 only 111,185 persons were (coercively) expelled from the EU. This is the same year that the Member States issued more than 3.7 million first work and residence permits to third country nationals, the largest category being work related. Only three Member States actually expelled more than 10,000 persons in 2023: France, Germany and Sweden. The population of the EU is over 449 million persons. It must be recognised that the 111,185 persons expelled constituted only 20% of the persons in respect of whom the Member States had issued return decisions. Nonetheless, there cannot but be a question of proportionality let alone urgency regarding addressing this statistically rather marginal area of EU policy.

The proportionality question could be answered in favour of the revision of EU expulsion law if the focus was on expelling persons committing serious crimes or constituting a threat to public policy, public security or national security. These grounds for expulsion are dealt with in the proposal at Article 16 as aggravating grounds for expulsion and reasons to limit suspensive effect of appeal rights. But in the explanatory memorandum, they do not even appear. The reasons given there for the proposal are:

1. A migration management system must have a credible and effective expulsion policy (no reason is given for this statement);
2. People with no right to stay undermine the entire migration and asylum system; (the possibility of regularisation to bring down the numbers is not addressed);
3. Failing to expel migrants is unfair to those who have ‘played by the rules;’
4. Failing to expel migrants undercuts Europe’s drive to attract and retain talent (this argument stands without authority);
5. Failing to expel migrants erodes public support for open and tolerant societies (this is a siren call of the far right);
6. Failing to expel migrants incentivises illegal arrivals;
7. Failing to expel migrants exposes those staying illegally to precarious conditions and exploitation by criminal networks (again the question of labour standard enforcement and regularisation are not addressed).

These reasons for putting forward a very far-reaching proposal on return which will have substantial financial costs for the Member States seem somewhat slim.

Concerns relating to the proportionality of the proposal will not be assuaged until there is a comprehensive and full impact assessment, yet the Commission has expressly decided not to undertake an impact assessment at all, as it states in the Explanatory Memorandum. The reason given for this decision is that due to the urgency of proposing new rules in the area of return, the proposal is informed by a wide range of consultations, studies and evaluations which are enumerated in the explanatory memorandum. None of these consultations, studies or evaluations constitute an impact assessment, a requirement of EU lawmaking except in exceptional circumstances. Indeed, although the existing Directive requires that the Commission carry out an evaluation every three years, it has done so only once, in 2013.

The claim to urgency is also somewhat dubious. The Commission proposed a re-cast of the Return Directive in 2018, again without an impact assessment which it deemed unnecessary. The European Parliament was not impressed and carried out its own substitute impact assessment and implementation assessment. In the implementation assessment it found that insufficient fundamental rights guarantees put into question the effectiveness of the procedure. The European Parliament’s responsible committee was unable to reach agreement on a report so the proposal did not progress. In November 2024 the Council asked the Commission ‘to take determined action at all levels to facilitate and speed up returns.’

For the moment, the proposal on the table does not seem very well adapted to the realities of migration in the EU. It would be helpful if more emphasis was placed in the proposal on ensuring that non-EU nationals in the EU obtain clear and effective assistance by both officials and legal representatives regarding pathways to avoid falling into irregularity and to regularise if this has already happened. Such an approach would no doubt bring down the number of un-executed (and un-executable) return decisions and focus attention on  real grounds for expulsion on grounds of serious criminal convictions and public and national security.

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