Considerations on COM(2025)101 - Common system for the return of third-country nationals staying illegally in the Union - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2025)101 - Common system for the return of third-country nationals staying illegally in the Union. |
|---|---|
| document | COM(2025)101  |
| date | March 11, 2025 |
(2) This Regulation establishes a common system for returning third-country nationals with no right to stay in the Union based on a common procedure for return and readmission, a system for preventing and managing the risk of absconding and cooperation based on mutual trust between Member States.
(3) To contribute to the implementation of the comprehensive approach set out in the Regulation (EU) 2024/1351 of the European Parliament and of the Council 24 , a common system for effectively managing of the return of illegally staying third-country nationals should be put in place. That system should be based on integrated policy-making to ensure coherence and effectiveness of the actions and measures taken by the Union and its Member States acting within their respective competencies.
(4) The European Council has consistently underlined the importance for determined action at all levels to facilitate, increase and speed up returns from the European Union. The European Council in October 2024 invited the Commission to submit a new legislative proposal, as a matter of urgency.
(5) The Strategic guidelines for legislative and operational planning within the area of freedom, security and justice adopted by the Justice and Home Affairs Council on 12 December 2024 recall that a successful return policy is a fundamental pillar of a comprehensive and credible Union asylum and migration system. To this end, the strategic guidelines call to develop and implement a more assertive and comprehensive approach to returns, by upgrading the legal framework as a matter of urgency.
(6) An effective return policy should ensure coherence with and contribute to the integrity of the Pact on Migration and Asylum and contribute to managing illegal immigration to the Union and prevent unauthorised movements between Member States of illegally staying third-country nationals to safeguard the area without internal border controls while respecting fundamental rights.
(7) The Union and its Member States have been increasing efforts to make return policies more effective. Despite these efforts, the existing legal framework which consists of Council Directive 2001/40/EC 25 and Directive 2008/115/EC 26 , is no longer corresponding to the needs of the Union migration policy. Since the adoption of Directive 2008/115/EC in 2008, the area of freedom, security and justice and the Union's migration policy has considerably evolved. EU law in the area of migration has moved from legislation with minimum standards to bringing Member States' practices closer. The Commission sought to reform the return rules in 2018 with the proposal to recast the Return Directive 27 . The Commission has also sought to support Member States in using the flexibilities of Directive 2008/115/EC through Recommendations (EU) 2017/2338 28 and (EU) 2023/682 29 . However, the limits of the current legal framework have been reached.
(8) A common procedure for return that is firm and fair should be set up to ensure that third-country nationals who do not, or no longer fulfil the conditions for entry, stay or residence on the territory of the Member States are returned in a humane manner and with full respect for fundamental rights as well as international law. Clear and transparent rules applicable in all Member States should provide certainty for the third-country national concerned and competent authorities. It is important to simplify, facilitate and speed up return procedures and ensure that return is not obstructed by unauthorised movements to other Member States.
(9) The application of the rules pursuant to this Regulation should not affect the rules on access to international protection in accordance with Regulation (EU) 2024/1348 of the European Parliament and the Council 30 . Where relevant, the rules in this Regulation are complemented by the specific rules linking negative asylum decisions and return decisions for issuance and for remedies in Regulation (EU) 2024/1348 and the return border procedure set out in Regulation (EU) 2024/1349 of the European Parliament and the Council 31 .
(10) This Regulation respects the fundamental rights of third-country nationals and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the ‘Charter’) as well as the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 (the Geneva Convention). It should be applied in compliance with the Charter, general principles of Union law and relevant international law.
(11) The principle of non-refoulement and the prohibition of collective expulsion provided for in Article 19 of the Charter should be respected when applying this Regulation. No one may be removed, expelled or extradited to a third country where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
(12) The Member State on whose territory the illegally staying third-country national is detected is responsible for ensuring his or her return. Upon detection of illegal stay, Member States should swiftly identify the third-country national and verify possible security risks by querying the relevant Union and national databases. Member States should check for any vulnerabilities and, where relevant, perform a health check.
(13) Competent authorities should verify compliance with the principle of non-refoulement on the basis of an individual assessment taking into account all relevant circumstances. The third-country national concerned should submit as quickly as possible evidence relating to his or her own personal circumstances. It should be possible to rely upon an existing thorough assessment of all relevant circumstance made in previous stages of the procedure. Any change in circumstances and any new element evidencing a risk should be examined.
(14) It is necessary that Member States can cooperate more flexibly, including through new bilateral agreements or arrangements, and in a more targeted manner to reduce movements of illegally staying third-country nationals across common internal borders while at the same time safeguarding the Schengen area without internal border controls.
(15) Once it is established that the third-country national does not or no longer fulfil the conditions for entry, stay or residence on the territory of the Member States, a return decision should be swiftly issued based on an individual assessment taking into account all facts and circumstances.
(16) It is necessary to ensure that the essential elements of a return decision issued by a Member State are entered in a specific form as a European Return Order and made available in the Schengen Information System together with the alert on return or through bilateral information exchange with another Member State. The European Return Order should in turn support the recognition and enforcement of return decisions issued by another Member State where the third country national moves unauthorised to another Member State.
(17) Often, and especially in cases where there is no cooperation by the third country national, it is difficult for the competent authorities to identify the country of return at the time of issuing the return decision. In such cases, the competent authorities should determine the country of return on the basis of the information available and indicate the most likely country or countries in the return decision.
(18) Where a third-country national present on the territory of a Member State is subject to an enforceable return decision from another Member State, that decision should be recognised and enforced. Recognition and enforcement of return decisions should facilitate and accelerate the return process on the basis of enhanced cooperation and mutual trust between Member States. They can also contribute to deterring irregular migration and discouraging unauthorised secondary movements within the Union, as well as limiting delays in the return process. The remedy against the return decisions should be exercised in the issuing Member State.
(19) From the date of application of this Regulation, Member States should put in place legal and technical arrangements to ensure that the European Return Order can be made available through the Schengen Information System. By 1 July 2027, just over one year after the date of application of Regulation (EU) 2024/1351, the Commission should review whether Member States have established appropriate legal and technical arrangements to effectively process European Return Orders through the Schengen Information System. Based on that review, the Commission should adopt an implementing decision by which the recognition of enforceable return decisions, supported by the European Return Order, should become mandatory.
(20) The effects of national return measures should continue to be given a Union dimension by establishing an entry ban prohibiting entry into and stay on the territory of all Member States. The length of an entry ban should be determined with due regard to all relevant circumstances of an individual case and should in principle not exceed ten years. When an illegally staying third-country national is detected during exit checks at the external borders, it could be appropriate to impose an entry ban in order to prevent future re-entry and therefore to reduce the risks of illegal immigration.
(21) Third-country nationals can be returned by coercive measures through removal or by voluntarily complying with the obligation to leave. The two types of return should be linked to avoid gaps in the system. Whereas cooperating third-country nationals should continue to be returned primarily through voluntary return, reinforced rules on removal seek to ensure a direct and immediate consequence in case the third-country national does not respect the date by which they need to leave. Coercive measures should be subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued.
(22) Common rules are necessary to ensure that third-country nationals posing security risks and with no right to stay in the Union are efficiently identified and swiftly returned. It is necessary to ensure that relevant checks are carried out to identify and flag third-country nationals with security risks including by relying on the screening process as set out in Regulation 2024/1356 of the European Parliament and of the Council 32 . For third-country nationals posing security risks, removal should be the rule, and it should be possible to derogate from the general rules in order to provide for longer entry bans, longer detention periods and from the use of the use of specialised detention facilities so that those who threaten the security of Union are swiftly removed.
(23) New rules should extend the possibilities for Member States to ensure returns to third countries through additional tools. It should be possible to put in place specific agreements or arrangements with third countries for the purpose of providing Member States with more options for returns subject to the conditions that the international human right standards and the principle of non-refoulement are respected by the third country concerned. In particular, the agreement or arrangement should set out the modalities of transfer, the conditions for the stay in the country, the modalities in case of onward return to the country of origin, the consequences in case of violations or of significant changes adversely impacting the situation in the third country, and an independent monitoring body or mechanism to assess the implementation of the agreement or arrangement.Such agreements or arrangements will constitute an implementation of Union law for the purposes of Article 51 (1) of the Charter.
(24) A well-functioning Schengen area without internal borders relies on the effective and efficient application by the Member States of the relevant acquis. Council Regulation (EU) 2022/922 establishes an evaluation and monitoring mechanism to verify the application of the Schengen acquis by means of periodic, unannounced and thematic evaluations, including in relation to the effective return of third-country nationals with no right to stay and the respect of fundamental rights. This mechanism allows to swiftly identify deficiencies that could disrupt the correct functioning of the Schengen area and ensures that those deficiencies are duly addressed.
(25) The best interests of the child should be a primary consideration of Member States when applying return procedures, in accordance with Article 24 of the Charter and the 1989 United Nations Convention on the Rights of the Child. In assessing the individual best interests of the child, Member States should, in particular, take due account of the minor’s well-being and social development in the short, medium and long term, safety and security considerations and the views of the minor in accordance with his or her age and maturity, including his or her background. The unaccompanied minor should be guided by a representative through all the steps of the return process.
(26) Where there are grounds for doubting as to whether or not the third-country national is a minor, an age assessment should be carried out. For the purpose of ensuring coherence across migration management in the Union the same procedure as provided for in Regulation (EU) 2024/1348 of the European Parliament and of the Council 33 should be followed. When carrying out age assessments, Member States should in particular take into account relevant guidelines from the European Union Agency for Asylum.
(27) To reinforce the effectiveness of the return procedure, clear responsibilities for third-country nationals should be established. Third country-nationals should cooperate with the authorities at all stages of the return procedure. Third-country nationals should remain available and provide the necessary information to prepare the return. In case the obligations to cooperate are not respected, effective and proportionate consequences should be imposed, including for instance reduced benefits and allowances granted in accordance with national law, seizure of travel documents or the extension of the duration of an entry ban. The competent authorities should inform the third-country national of the different steps of return procedure, their obligations and the consequences of not complying with those obligations.
(28) This Regulation should not affect the possibility for Member States to impose, where applicable, criminal sanctions in accordance with national criminal law to third-country nationals falling within the scope of this Regulation.
(29) A set of legal remedies against decisions related to return should be established to guarantee effective protection of the interests of the individuals concerned. The necessary legal aid should be made available, upon request, to those who lack sufficient resources in cases of appeal or review before a judicial authority.
(30) To improve the effectiveness of the return procedures, while ensuring the respect of the right to an effective remedy in accordance with Article 47 of the Charter, appeals against return related decisions should be challenged as far as possible before one judicial level. The rules of this Regulation related to appeals and suspensive effect should comply with the right to an effective remedy as provided for in Article 47 of the Charter of Fundamental Rights.
(31) Member States should be provided with the necessary tools for assessing, managing and preventing the risk of absconding. Common rules should streamline the assessment of this risk in individual cases and seek to increase the use of efficient alternatives to detention in Member States to effectively manage the return process.
(32) It should be possible to impose detention when proportionate and necessary, following an individual assessment of each case, including consideration of any situation of vulnerability, only for the purpose of preparing return. For this purpose, detention could be imposed when there is a risk that third-country nationals abscond, when third-country nationals hamper or avoid return, or when they pose a security risk, or do not comply with alternatives to detention, or detention is necessary to determine or verify identity or nationality. The authorities should act with due diligence and detention should be maintained only for as short a period as possible and may not exceed 24 months. Where national law provides for the detention of minors, the best interests of the child should be a primary consideration. Other less coercive alternative measures to detention should be used when they can be applied effectively to illegally staying third-country nationals.
(33) Returning third-country nationals who pose a security risk requires specific measures aimed at protecting the rights and freedoms of others. It should therefore be possible to detain such third-country nationals for a longer period, while any such detention has to comply with the principle of proportionality.
(34) Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law, taking into account the practical guidelines from the Council of Europe Committee for the prevention of torture and inhuman and degrading treatment. Detention should, as a rule, take place in specialised detention facilities or dedicated branches of other facilities. Prison accommodation may be resorted to when a Member State cannot provide for such facility keeping the third-country nationals separate from ordinary prisoners.
(35) The grounds for detention set out in this Regulation are without prejudice to other grounds for detention, including detention grounds within the framework of criminal proceedings, which are applicable under national law and unrelated to the third-country national’s illegal stay.
(36) The obligation of any State to readmit its own nationals represents a fundamental principle of state sovereignty and international cooperation. The duty of States to readmit their own nationals is considered a principle of customary international law. The existence of such a duty is further evidenced by the consistent practice of States in implementing readmission agreements and arrangements, combined with their recognition of this principle as a necessary aspect of international cooperation in managing migration.
(37) A systematic and coordinated approach to readmission among Member States is crucial to facilitate the return of third-country nationals. Insufficient follow up to enforceable return decisions risks hampering the efficiency of the common approach to returns. Enforceable return decisions should be systematically followed by all necessary measures to implement the return, including the submission of readmission requests to third countries’ authorities, in cases where nationality is in doubt or a travel document needs to be obtained.
(38) While readmission also depends on the cooperation of third countries, a coherent approach should be taken among Member States to increase the efficiency and effectiveness of readmission procedures, and to ensure unity among Member States. Transparency and coordination on engagement with third countries, including in the context of negotiating readmission instruments, should be ensured to strengthen a coherent Union approach. To ensure effective returns, communication with relevant third country entities for the purpose of the readmission procedure should not amount to diplomatic recognition of the third-country entities concerned.
(39) Effective return procedures rely on efficient administrative cooperation and information sharing between Member States. The exchange of information including the sharing of data on the identity and nationality of the third-country nationals, their travel documents and other relevant information should be based on clear rules, including those set out in Regulation (EU) 2018/1860 of the European Parliament and of the Council 34 . These rules should respect the principles of data protection and the rights of the individual concerned, ensuring that such information is accurate and is only used for the purposes of return, readmission, and reintegration, and is protected against unauthorised access, disclosure, or use.
(40) Member States should take the necessary measures to ensure competent authorities respect Directive [...] amending Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime to encourage crime reporting and foster trust in the justice system.
(41) Regulation (EU) 2016/679 of the European Parliament and of the Council 35 applies to the processing of personal data for the purposes of this Regulation. Regulation (EU) 2018/1725 of the European Parliament and of the Council applies to the processing of personal data by the Union institutions and bodies for the purposes of this Regulation. In view of the important reasons of public interest behind readmission, the transfer of personal data of third country nationals subject to a return decision, including data relating to their identity, travel documents, other relevant data as well as, in duly justified cases, data concerning their criminal convictions and health, could be necessary for the purposes of readmission and reintegration. Such transfers must be carried out in accordance with Chapter V of Regulation (EU) 2016/679 and Chapter V of Regulation (EU) 2018/1725 36 , as applicable, as well as with the principles of non-refoulement, proportionality and necessity and the Charter of Fundamental Rights of the European Union.
(42) Obstacles to cooperation and communication among Member State authorities responsible for the asylum and the return procedures represent a key structural challenge for a more efficient return process. Competent authorities involved in the different phases of the return process should work and coordinate closely. Where Member States designate law enforcement authorities as competent authorities under this Regulation, it should be understood that this designation is limited to such authorities when acting in their capacity of enforcing return decisions. Law enforcement authorities acting in their capacity as investigative authorities in criminal proceedings should not be covered by such a designation.
(43) A common system for returns should make full use of digital systems supporting managing returns, readmission and reintegration either operationally managed on Union level or by the Member States, with an emphasis on efficient administrative procedure, cooperation, information sharing and interoperability.
(44) The Union provides financial and operational support in order to achieve an effective implementation of this Regulation. To the extent that activities should be financed by the Asylum and Migration Fund thematic facility, these may be implemented under the direct, indirect or shared management. Member States should make best use of the available Union financial instruments, programmes and projects in the field of return, in particular under Regulation (EU) 2021/1147 of the European Parliament and of the Council 37 , as well as of the operational assistance by the European Border and Coast Guard Agency according to Regulation (EU) 2019/1896 of the European Parliament and of the Council 38 . Such support should be used in particular for establishing return management systems and programmes for providing logistical, financial and other material or in-kind assistance to support the return of illegally staying third-country nationals.
(45) The collection and analysis of reliable and comparable statistics on return, readmission, and reintegration are essential for monitoring the effectiveness of this Regulation and for identifying areas for improvement, as they provide valuable insights into the efficiency of return procedures, the cooperation of third countries, and the outcomes of reintegration efforts. Common standards and definitions for the collection and reporting of relevant data should be established to enable the Commission and the Member States to assess the impact of this Regulation and to contribute to making informed decisions on future policy developments.
(46) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to establish the European Return Order and the common form of readmission requests. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 39 .
(47) Directive 2001/40/EC, 2008/115/EC and Council Decision 2004/191/EC should be repealed.
(48) Since the objectives of the Regulation to improve the efficiency of return to safeguard the area without internal borders, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action to ensure a common and coherent approach among Member States, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
(49) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399 of the European Parliament and of the Council 40 - upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide, within a period of six months after the Council has decided on this Regulation, whether it will implement it in its national law.
(50) To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399, this Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC 41 ; Ireland is therefore not taking part in the adoption of this Regulation and, subject to the application of Article 4 of Protocol 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, is not bound by it or subject to its application. [Nevertheless, to the extent that this Regulation does not constitute a development of the Schengen acquis, Ireland has, in accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and the TFEU, notified [, by letter of …,] its wish to take part in the adoption and application of this Regulation.]
[or]
[In addition, to the extent that this Regulation does not constitute a development of the Schengen acquis, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is therefore not bound by it or subject to its application.]
(51) As regards Iceland and Norway, this Regulation constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399 — a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis 42 , which fall within the area referred to in Article 1, point C, of Council Decision 1999/437/EC.
(52) As regards Switzerland, this Regulation constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399— a development of provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis 43 , which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC 44 .
(53) As regards Liechtenstein, this Regulation constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399 — a development of provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU 45 .
(54) Where this Regulation refers to an obligation to leave the European Union, this should be understood as an obligation to leave the territory of all the Member States to which this Regulation applies, including in the light of the preceding recitals.
(55) The European Data Protection Supervisor was consulted in accordance with Article 42(2) of Regulation (EU) 2018/1725 and delivered its opinion on […].