Diminishing safeguards, increasing returns: Non-refoulement gaps in the EU return and readmission system

Increasing the rate of return of third country nationals without a legal right to remain in the EU looks set to remain a policy priority for this European Commission. Nevertheless, the European Union and member states must ensure that their return and readmission policy complies in full with their international obligations, particularly the principle of non-refoulement. In this discussion paper, Olivia Sundberg Diez argues that recent trends are creating a growing accountability gap over how returns are conducted, with implications for refoulement:

• First, procedural safeguards are increasingly diminished in order to accelerate returns. The Recast Return Directive proposal, and the Council’s partial general approach, could curtail access to effective remedies within return procedures. Regarding readmission, cooperation with third countries is becoming ever more informal and frequently bypasses democratic and judicial scrutiny.

• Second, significant divergence remains between national return practices. EU mechanisms are sometimes strategically avoided when pursuing controversial agreements that are EU-wide or involve the Union, leading to a blurring of responsibility. At the same time, problematic bilateral agreements continue to be concluded with limited data and without EU guidance.

• Third, there is a lack of suitable monitoring mechanisms within return practices and readmission agreements. This hinders the EU and member states’ ability to guarantee returnees’ safety, and is worsened by the recast Return Directive proposals. In particular, considerations regarding the risk of indirect refoulement are notably absent.

These three trends amount to structural shortcomings in EU and member states’ efforts to prevent refoulement. This paper analyses the risks at hand so that they can be better addressed in the next legislative cycle, and calls for strengthening safeguards and accountability measures in future readmission cooperation and the negotiations for the recast Return Directive.