Return Instruments

Abstract

Due to the distinction between legal and illegal entry and legal and illegal residence, the states are responsible to decide upon returns of third-country nationals. This decision is based on their state sovereignty but shaped by international and especially EU law. In that regard, the Return Directive sets out standards and procedures for the return in order to harmonize the legislation of the EU Member States.

The systematic center of the Directive’s architecture is the return decision which is based on the implicit obligation to identify an illegal stay and, therefore, to decide upon a return measure or regularization. Furthermore, the Directive determines procedural and substantial requirements for the return procedure. In this context, the principle of the priority of voluntary return is one important procedural requirement that increases the significance of different return assistance programs. Moreover, the Member States have to take different human rights principles into account before a voluntary return or removal, which are anchored in international law and amended by European law.

Finally, the enforcement of return which is built on administrative enforcement law of the legal systems of the Member States is also characterized by the Return Directive. The regulation establishes general requirements and an obligation to take all steps necessary to ensure the enforcement of the return decision. To ensure the enforcement of this obligation, the Directive establishes the possibility of a deportation detention as a strong instrument of enforcement which cannot be used for general preventive deterrence purposes.