Legislating without Evidence: The Recast of the EU Return Directive

Abstract

The article discusses the recast of the EU Return Directive (2008/115/EC) from the perspective of effectiveness and fundamental rights protection, as two underlying objectives of the Directive. Relying on the implementation assessment of the Directive carried out by the European Parliamentary Research Service, the article analyses the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive. If adopted as proposed, will the recast strengthen or further undermine the effectiveness? The assessment focuses on return decision, voluntary departure, entry ban, and detention. It also looks at omissions in the recast proposal, namely a missed opportunity to remedy the current shortcomings as regards non-returnable people. As the article concludes, the recast proposal will hardly improve the effectiveness of return and may lead to violations of fundamental rights of people in an irregular situation.