Research report ‘Interpretation and implementation of the Returns Directive’
The EU Returns Directive is an important instrument to humanely return third-country nationals without lawful residence to their country of origin. However, the return of third-country nationals remains problematic for a number of reasons.
The Europa Institute of Leiden University was asked by the Dutch Repatriation and Departure Service and commissioned by the Research and Documentation Centre of the Ministry of Justice and Security to investigate the implementation of the EU Returns Directive. The first research question is what the influence of the Returns Directive and the case law on the Directive has been on the return of third-country nationals and the use of immigration detention in the past decade. The second research question is what this influence has been in Belgium, Denmark, Germany and Norway.
Foreign nationals without lawful residence must return to their country of origin and should be issued a return decision. This can lead to different return trajectories. The foreign national can return independently with supervision, for instance with the use of return support by the International Organization for Migration. The foreign national can also return independently without supervision. In that case the domestic authorities often lose track of the foreign national and it is unsure whether the foreign national has actually returned or is still present in the territory of the host state. A third option is that the foreign national is forcibly removed. In the Netherlands and in the other states that have been investigated in this research project, there is a preference for independent return with supervision, as this is perceived to be less burdensome for both the foreign national and the domestic authorities.
The Return Directive has resulted in amendments to national legislation in the Netherlands and in the other investigated states. The analysis of the implementing legislation has shown that the manner in which states implement the open norms from the Return Directives varies widely. This leads to a situation in which only limited harmonisation is achieved. The country analysis conducted in this research project shows that the case law of the Court of Justice of the EU has had a greater impact on legislation, policy and application in the Netherlands than in the other selected states. The researchers argue that the Dutch legislature has taken a more 'wait and see' attitude than the legislatures in the other investigated states. This is reflected in the trend that the interpretation of the Return Directive is mostly left to the judiciary. Because of this, case law has had a bigger impact in the Netherlands compared to the other investigated states. The effectiveness of return proceedings is to a large extent dependent on the cooperation of both the foreign national concerned and the authorities of the country of origin. Better cooperation with the authorities of the countries of origin, preferably in an EU context, is required to facilitate return procedures.
The report (in Dutch with a summary in English) can be downloaded here.
Interpretatie en implementatie van de Terugkeerrichtlijn, Dr Mark Klaassen and Professor Peter Rodrigues, Leiden University: Europa Instituut, March 2021.