BAKGRUNN (fra kommisjonsrekommandasjon)

(1) Article 4(3) of the Treaty on European Union requires the Union and the Member States to assist each other, in full mutual respect, in carrying out tasks that flow from the Treaties.

(2) Directive 2008/115/EC of the European Parliament and of the Council lays down common standards and procedures to be applied in Member States for returning illegally staying third-country nationals.

(3) On 12 September 2018 the Commission tabled a proposal to recast Directive 2008/115/EC reducing the length of return procedures, securing a better link between asylum and return procedures and ensuring a more effective use of measures to prevent absconding, while ensuring respect for fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union (the Charter).

(4) The New Pact on Migration and Asylum aims at establishing a common EU system for returns that combines stronger structures inside the Union with more effective cooperation with third countries on return and readmission, as part of a comprehensive approach on managing migration. That approach brings together all policies in the areas of migration, asylum, integration, border management, recognising that the overall effectiveness depends on progress on all fronts. A faster, seamless migration process and stronger governance of migration and borders policies, cooperation with third countries including on the implementation of EU readmission agreements and arrangements, underpinned by modern IT systems and support from relevant EU agencies will foster a more effective and sustainable return process.

(5) The European Council has consistently underlined the importance of a unified, comprehensive and effective Union policy on return and readmission calling for swift action to ensure effective returns from the Union by speeding up return procedures. The European Council also invited Member States to recognise each other’s return decisions.

(6) The Commission Communication of 10 February 2021 on ‘Enhancing cooperation on return and readmission as part of a fair, effective and comprehensive EU migration policy’ identified the obstacles that hamper effective return and indicated that, to overcome them, there is a need for improved procedures that reduce the fragmentation of national approaches, as well as closer cooperation and reinforced solidarity between all Member States. The Schengen Evaluation and Monitoring Mechanism established by Council Regulation (EU) 2022/922 and the information collected through the European Migration Network established by Council Decision 2008/381/EC have allowed for a comprehensive assessment of how Member States implement the Union policy on return and to identify the existing gaps and obstacles.

(7) In view of the continued challenges in the area of return, and pending the conclusion of the legislative negotiations, notably on the proposal for a recast of Directive 2008/115/EC, additional actions are recommended to further improve the effective and efficient application of the existing legal framework.

(8) Commission Recommendation (EU) 2017/432 which recommends a series of measures and actions to make returns more effective when implementing Directive 2008/115/EC, remains relevant and should continue to guide Member States for a more expeditious return process. Recommendation (EU) 2017/432 has been incorporated into Commission Recommendation (EU) 2017/2338 allowing for a continuous assessment of its implementation as part of the Schengen Evaluation and Monitoring Mechanism.

(9) As a steppingstone towards a common EU system for returns, mutual recognition of return decisions can facilitate and accelerate the return processes for the Member State responsible for return and enhance cooperation and mutual trust between Member States for further increasing convergence between Member States on managing migration. Mutual recognition of return decisions previously issued in another Member State can also contribute to deterring irregular migration and discourage unauthorised secondary movements within the Union. Council Directive 2001/40/EC sets out a framework for mutual recognition. This framework was complemented by Council Decision 2004/191/EC setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC, predating much of the support that has since been developed at Union level. Progress on mutual recognition of return decisions should also feed into the ongoing discussions on the Commission proposal to recast Directive 2008/115/EC.

(10) The lack of a Union-wide system indicating whether an apprehended third country national is already subject to a return decision issued by another Member State has previously hampered the recourse to mutual recognition.

(11) Since 7 March 2023 when Regulation (EU) 2018/1860 of the European Parliament and of the Council started to apply, Member States are required to enter an alert on return in the Schengen Information System without delay following the issuance of a return decision. Through the Schengen Information System Member States are now able to see immediately whether a third-country national apprehended by the competent authority is already subject to a return decision issued by another Member State.

(12) The added value of this new feature in the Schengen Information System depends on the active use of and adequate follow up on alerts on return including by means of mutual recognition of return decision issued previously by other Member States. This can significantly speed up and render the return process more efficient notably when the return can be immediately enforced, including where the period for voluntary departure granted in the return decision by issuing Member State has expired and where remedies against such return decision have been exhausted.

(13) Dedicated funding under the Asylum, Migration and Integration Fund will support the implementation of this Recommendation and in particular, the mutual recognition of return decisions between Member States. Moreover, practical and operational support by competent EU Agencies should be provided in the implementation of this recommendation.

(14) Obstacles to cooperation and communication among national authorities responsible for the asylum and the return procedures represent a key structural challenge for a more efficient return process. All competent authorities of the Member States involved in the different phases of the return process should work and coordinate closely.

(15) Closer links between the asylum and return procedures and swift procedures at the external borders of the Member States can considerably increase the efficiency of return. When the derogation from the application of Directive 2008/115/EC on the basis of Article 2(2)(a) is not applicable, there is a need to accelerate, within the current legislative framework, notably the effective return of those third-country nationals whose application for international protection has been rejected and for cases in the vicinity of the external border of Member States, through a faster return process providing that the respect of their fundamental rights is ensured during the whole return process.

(16) Article 3(3) of Regulation (EU) 2018/1860 provides for a possibility to refrain from entering alerts on return in the Schengen Information System when the return decision is issued at the external border of a Member State and is executed immediately. Nevertheless, Article 3(1) of Regulation (EU) 2018/1860 requires Member States to ensure that alerts are entered in the Schengen Information System without delay when the return was not executed immediately from the external borders.

(17) In order to incentivise and encourage voluntary returns, the possibilities provided by Directive 2008/115/EC could be used to consider refraining from issuing an entry ban in respect of third-country nationals who cooperate with the authorities and who participate in an assisted voluntary return and reintegration programme, without prejudice to the obligations set by Article 11(1) of Directive 2008/115/EC. In such cases, Member States are to prolong the period for voluntary departure as appropriate, in accordance with Article 7(2) of Directive 2008/115/EC.

(18) Preventing absconding and unauthorised movements within the Union is essential to ensure the effectiveness of the common EU system for returns. A comprehensive approach, including the key tools for assessing and preventing the risk of absconding, is needed to facilitate and streamline the assessment of this risk in individual cases, to strengthen the use of efficient alternatives to detention, and to ensure sufficient detention capacity – when detention is used as a measure of last resort and for an as short as possible period in accordance with Article 15 of Directive 2008/115/EC.

(19) Support at Union level is available for the implementation of this Recommendation including by the EU Return Coordinator and the High-Level Network for Returns guided by an operational strategy on returns. Operational support is also available through competent Agencies of the Union, notably Frontex, the European Union Asylum Agency and the Fundamental Rights Agency.

(20) National return authorities are part of the European Border and Coast Guard which is responsible for ensuring the effective implementation of the European Integrated Border Management. Frontex plays a central role as the operational arm of the common EU system for returns and provides assistance to Member States in all phases of the return process under its mandate pursuant to Regulation (EU) 2019/1896 of the European Parliament and of the Council.

(21) This Recommendation should be addressed to all Member States bound by Directive 2008/115/EC.

(22) Member States are encouraged to instruct their national authorities competent for carrying out return-related tasks to apply this Recommendation when performing their duties.

(23) This Recommendation complies with the fundamental rights and the principles recognised by the Charter. In particular, this Recommendation ensures full respect for human dignity and the application of Articles 1, 4, 14, 18, 19, 21, 24 and 47 of the Charter and has to be implemented accordingly,