BAKGRUNN (fra kommisjonsforslaget 16.12.2024)

Reasons for and objectives of the proposal

The process of returning third-country nationals with no legal right to stay in the Schengen area is complex, sensitive and involves a high number of actors, authorities and stakeholders. Significant efforts with concrete results have been made over the last years to build a well-functioning EU return system in line with the objectives set out in the Pact on Migration and Asylum 1 . The implementation of the EU Strategy on Voluntary Return and Reintegration 2 , the Operational Strategy for more effective returns of the Return Coordinator and the work of the High-Level Network on Returns supported and reinforced the coherence of Member States’ efforts. Nevertheless, there is still a fragmented approach among EU Member States’ return systems hampering the full extent of EU potential for more effective returns. An important bottleneck in the return process relates to the coordination and coherence of actors and procedures at both national and European levels.

On 17-18 October, the European Council stressed the importance of a comprehensive approach to migration, including implementing adopted EU legislation and application of existing legislation, in order to best address the current challenges. The European Council also called for determined action at all levels to facilitate, increase and speed up returns from the European Union, using all relevant EU policies, instruments and tools. A more effective implementation of the current legislation on return and further work towards a common approach to return support a faster and more efficient implementation of the Pact.

Furthermore, in the political guidelines for 2024-2029, President von der Leyen called for a new common approach on returns. This entails establishing a new legislative framework to speed up and simplify the return process, while ensuring that returns are conducted in a dignified manner. It also entails digitalising case management and moving towards mutual recognition of return decisions across the EU. The recommendations set out in this proposal for a Council implementing decision support the reflections and preparation of the upcoming proposals for a new legislative framework.

Council Regulation (EU) 2022/922 established an evaluation and monitoring mechanism to verify Member States’ application of the Schengen acquis 3 . In accordance with Article 4(4) of the Regulation, the Commission may organise thematic evaluations, in particular to assess issues across policy areas or practices of Member States and Schengen Associated Countries (collectively referred to as Member States) facing similar challenges.

The Annual Evaluation Programme for 2024 4 to verify the application of the Schengen acquis in accordance with Council Regulation (EU) 2022/922 established that the Commission and Member States would carry out a thematic evaluation in 2024 entitled ‘Bridging national gaps: towards an effective EU return system through common solutions and innovative practices’. This evaluation has a twofold objective: on the one hand, to identify the key common obstacles limiting authorities’ ability to carry out the return of third-county nationals without a legal right to stay, and on the other hand, to build on common areas for improvement where common EU solutions and practices would bring added value.

In line with these objectives, the thematic evaluation analysed the main bottlenecks and possible solutions in the national return systems, focusing on the key stages of the return process: 

• Initiation of the return process;
• Identification of third-country nationals;
• National and European interagency cooperation;
• Voluntary return and enforcement of returns.

Considering that the effective return of third-country nationals with no right to stay in the EU requires adequate and proactive planning, including for the development of short, medium and long-term capabilities, as well as efficient coordination, the thematic evaluation paid particular attention to strategic and horizontal processes. These relate to the coordination and coherence of actors and procedures at both national and European levels, which are essential processes for a well-functioning Schengen area. The results of the evaluation aim at providing a joint response to returns to foster further coordination and coherence, while upholding fundamental rights safeguards, with a view to maximising the potential of the existing tools and the European legal framework.

The thematic evaluation takes into account the important role of an effective return system within European Integrated Border Management, as defined in the European Border and Coast Guard Regulation 5 . Furthermore, following the entry into operation of the renewed Schengen Information System 6 and the new functionalities supporting return procedures, the thematic evaluation looks into the effective use of alerts on return and refusals of entry introduced in the Schengen Information System, as well as national capabilities to effectively exchange information and cooperate with other Member States, with a view to enforcing return decisions and preventing unauthorised secondary movements within the Schengen area.

In line with the specific nature of the thematic evaluation (i.e. long-term engagement throughout 2024, requiring specific expertise on several related areas), a dedicated evaluation team was established by the Commission in December 2023, composed of 15 Member State experts, two Commission experts, as well as observers from the European Union Agency for Fundamental Right and the European Border and Coast Guard Agency (Frontex). The evaluation team developed a dedicated questionnaire, which was shared with all Member States, in order to identify common areas for improvement and good practical solutions at national and EU level within the above-mentioned key stages of return, which could contribute to a well-functioning Schengen area. The evaluation team also looked at the existing periodic Schengen evaluation reports in the field of return to identify any common challenges or best practices falling under the scope of the thematic evaluation. Similarly, the evaluation team considered relevant European Migration Network queries. Furthermore, five focus group discussions took place between the evaluation team and Frontex in order to leverage the Agency’s expertise and insights in view of further understanding where key challenges may lie and where best practices have been observed.

Based on the answers to the dedicated questionnaire that the evaluation team received at the end of June 2024, Italy, the Netherlands and Norway were identified for visits during September-October 2024. They were selected taking into account practices that due to their nature could not be effectively assessed remotely, as well as considering the need to avoid an additional burden on those Member States having been evaluated recently and those subject to periodic evaluations in 2024-2025, while ensuring a balanced and representative approach. Furthermore, videoconferences were carried out on specific topics to seek further information and clarifications with Austria and Denmark. 

In accordance with Article 20(4) first sub-paragraph of Council Regulation (EU) 2022/922, the Commission adopted an evaluation report 7 , which sets out common areas for improvement and best practices identified during the thematic evaluation.

On this basis, this proposal contains recommendations to address common areas for improvement, which should be read alongside the best practices 8 outlined in the thematic evaluation report 9 .

In line with the conclusions of the European Council on 17-18 October 2024, it is crucial that all necessary measures are taken swiftly to enforce return decisions issued by the authorities of Member States. The proposed recommendations are to support these efforts and to offer valuable insights for the new common EU approach to returns, including the future EU legislative framework, and to ensure coherence with the work on return implementing the Pact on Migration and Asylum. 

Within two months of the adoption by the Council of the Implementing Decision setting out the recommendations, each Member State will be invited to submit an action plan to the Commission for the review of its adequacy, as well as to the Council, in accordance with Articles 24 and 23(3) of Council Regulation (EU) 2022/922. These action plans shall contain remedial measures to implement all the recommendations, aimed at establishing effective operational procedures for more effective returns. In particular, Member States shall also explain how they intend to implement the identified best practices that they consider relevant and to clarify why the remaining practices cannot be taken into account considering national legal and operational specificities.

Member States should report to the Commission and the Council on the implementation of their action plans. Reporting synergies will be sought with the existing action plan related to return (if still open). The Commission will present a general overview on the overall progress of implementation of the action plans in the State of Schengen report in 2026, ensuring coherence with the ongoing efforts to further develop the common EU approach to returns, including as part of implementing the Pact on Migration and Asylum. Additionally, the Commission will continue supporting the implementation of best practices.