“Nobody understands why people that have no right to stay in the European Union are not returned, and frankly, I don’t understand that either,” EU internal affairs and migration commissioner Magnus Brunner reportedly said in January, on the sidelines of a meeting with EU countries’ interior ministers in Warsaw.
From an expert’s point of view, this is a noticeable statement. Practitioners, scholars and politicians know quite well why carrying out returns is often difficult.
Rejected asylum seekers may have no travel documents, choose not present them, or try to evade return obligations by going into hiding. They might not want to leave because they perceive the rejection of their asylum claim, or application for extended stay, as unfair.
Countries of origin sometimes refuse to allow their nationals to re-enter or do not issue passports or cooperate with enforcement authorities of EU states. There are also many cases where violence and conflicts in countries of origin stand in the way of returns, and there can be numerous practical, legal and political obstacles, such as a lack of safe travel connections to conflict-ridden countries or interrupted diplomatic contacts.
EU member states may also face domestic issues, such as a lack of staff, coordination, or capacity to follow up on return decisions. Sending desperate individuals to countries where they do not want to be is also not something that many people in Europe think of as their dream job.
This means that part of the problem is that return decisions are often taken even when there is no realistic prospect of actually enforcing them.
Yet, low return rates are mostly discussed as a political failure, with politicians suggesting that we just need more punitive rules.
In October 2024, the European Council asked the EU Commission to propose new legislation on returns ‘as a matter of urgency’, and in her political guidelines for 2024–2029, Ursula von der Leyen announced a new approach, ‘with a new legislative framework to speed up and simplify the process’.
A proposal for a new return regulation was presented in March this year. Among all novelties it includes, it was in particular the much discussed idea of establishing “return hubs” in third countries that received widespread attention.
It means that people who can’t stay in the EU, and can’t be returned to their home countries either, would be sent to some other country and that, perhaps, their return would then be organised from there.
While the EU Commission endorsed this idea and presented a possible legal basis for it, it chose not to clarify how such hubs would work in practice or where they could be established - probably with good reason: the hubs are an untested and questionable idea. Playing the ball back to those member states that demanded such hubs therefore seems to be a wise choice.
If adopted, the proposal would also make a return decision issued by one EU member state binding on all others, widen obligations for returnees to cooperate with authorities, extend the grounds for - and the maximum duration of - detention, and make readmission requests to returnees’ destination countries part of the return process.
It also outlines “alternatives to detention”, such as mobility restrictions and reporting duties. But these alternatives are not just alternatives – they can also be imposed when detention is no longer possible. EU law has – with good reason – long prioritised voluntary return over forced return, but the new approach makes forced return the default option.
Even if the proposal does not include an impact assessment, it is widely expected to make its way through the EU’s legislation machinery relatively quickly. But this remains to be seen. Virtually all member states want a tougher framework, but some details can turn out to be tricky.
Especially perhaps the proposed “European Return Order” and mutual recognition of return decisions. The idea is that if an individual is ordered to return by one member state, but moves on to another and is detected there, the second member state shall recognise the return decision issued by the first member state and, on this basis, enforce the return. This is proposed to be voluntary at first, but by July 2027, the Commission wants to make mutual recognition mandatory.
The idea might seem logical at first, but there are problematic aspects. Member states still take very different views on whether or not an asylum seeker is in need of protection.
Recognition rates for the same countries of origin vary considerably in the EU, and national laws also differ widely when it comes to residence rights awarded on national, non-EU harmonised grounds. A person who is rejected and ordered to leave one member state could have been eligible for protection (or a residence permit on other grounds) in another if they had gone there in the first place.
The migration management system in Europe would certainly look better, and the return system less troubled, if only people who have a realistic prospect of returning were ordered to leave.
As I have pointed out in a recent analysis, automatic mutual recognition therefore raises fairness issues, and there is certainly a cost and resources aspect as well.
Member states that offer ways out of irregular situations might attract secondary movements of returnees from member states with less flexible laws.
Mutual recognition is therefore in the interest of hardline member states (that people with return orders choose to leave), but disadvantageous for member states that might attract such secondary movements.
Last but not least, and perhaps most importantly, we have to keep in mind that the proposal focuses on the output side of the return system. What it does not address is the input side, the number of people who are channelled into the return system.
The proposal leaves the door open for regularisations and for giving people permits for humanitarian reasons, as an alternative to returning, but this remains something for the member states to do, if they want.
But the migration management system in Europe would certainly look better, and the return system less troubled, if only people who have a realistic prospect of returning were ordered to leave.
In the current political climate in the EU, which emphasises control and deterrence, there seems to be little room for flexibility and alternatives to return.
However, such alternatives should not be forgotten. They can relieve pressure from strained return systems and yield positive economic and humanitarian results.
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