Alternatives to Detention under the Return Regulation Proposal: The Illusion of Freedom

Introduction: In the direction of a Return Regulation 

On 11 March 2025, the European Fee printed a proposal for a Return Regulation (PRR) meant to repeal the present Return Directive. This reform is the final lacking piece of the renewed complete strategy to managing migration. The necessity to recast the Directive stems from the low return price, round 20%, underscoring the general ineffectiveness of the present return system. A primary try and reform the return framework was made in 2018, however negotiations stalled earlier than they reached the stage of trialogue discussions. Nonetheless, the Fee believes that the adoption of a Regulation will treatment the necessity for streamlining returns and making certain widespread procedural guidelines. Nonetheless, it would problem the political will to succeed in the mandatory consensus for its adoption.

Within the Employees Working Doc (16 June 2025), the Fee recognized widespread challenges that forestall Member States from implementing return procedures promptly, together with the complexity and fragmentation of the return course of, and inadequate cooperation from third-country authorities. Amongst them, the difficulties in making certain the presence of third-country nationals (TCNs) all through the process and stopping the chance of absconding signify vital challenges for the framework of return. They led to a rise in administrative workload and uncertainties and challenges in planning, identification, and return operations. To handle this example, the Proposal establishes goal standards to evaluate this threat in Article 30 and obligations upon the returnees below Chapter III.

Within the “Explanatory Memorandum” introducing the Proposal, the Fee famous that the brand new parts are designed based mostly on analysis findings on the gaps and desires of EU regulation on this space. Thus, it claims they shut the long-identified gaps. But, the researchers distanced themselves from how (and whether or not) their work contributed to the Proposal. That is additionally the case for the options to detention (ATD). At first look, the Proposal expressly regulates them in Article 31, offering a complete listing of doable choices, which is a brand new growth in comparison with the Return Directive. Nonetheless, this weblog put up argues that the brand new measures below the Article lack important parts to be thought-about ADT, as they are often adopted within the absence of authorized grounds for detention. Thus, it claims they’re systematic migration management measures moderately than much less coercive measures to be adopted as a substitute of pre-removal detention. This pattern displays a shift towards coercive measures throughout the PRR framework to make sure TCN’s availability. New coercive measures are about to be launched, framed as “obligations to cooperate” and “penalties for non-cooperation”, which embrace common reporting or residence at a selected handle. The effectiveness aimed toward is achieved not by means of rights-based measures, however by limiting the returnees’ liberty.

Options to Detention Measures below the Present Return Directive

To know whether or not the measures below Article 31 PRR supply real options, it’s vital first to make clear the notion and software of ATD below the present authorized framework. This part presents the related authorized ideas and educational debates to evaluate whether or not the proposal represents a step ahead or a distortion of current safeguards.

The present Return Directive doesn’t explicitly point out ADT, however Article 15(1) implies them by permitting detention “until different adequate however much less coercive measures could be utilized successfully in a selected case…”. On this regard, the Court docket of Justice of the European Union (CJEU) had dominated in a number of judgment (see El Dridi, Mahdi, Zh. and O.) that, when a number of authorized grounds for detention exist, authorities should first decide if ATDs can adequately fulfil the aims of detention, particularly, avoiding absconding and hampering or hindering the return process. The Court docket highlighted that the preliminary situation to use ADTs is the presence of authorized grounds for detention, not earlier than or after. This strategy aligns with using detention as a measure of final resort, underpinned by Articles 6 and 52 of the Constitution of Basic Rights of the European Union, and it enforces the precept of proportionality, a compulsory precept that applies all through the entire return process.

Regardless of the absence of a binding definition, ATDs are typically understood as “non-custodial measures that entail a stage of coerciveness of a decrease diploma than detention”. Teachers differentiate ATDs from “different types of detention” and “options to liberty”, based mostly on the diploma of liberty restriction imposed and its depth in apply. Which means measures labelled as ADTs could outcome within the deprivation of liberty even with out confinement by way of detention, as within the case of home arrest. In the meantime, options to liberty consult with the situation during which returnees are already detained and could also be launched if sure circumstances are met, equivalent to within the case of a launch on bail. This conceptual distinction is essential to guage whether or not measures below Article 31 RPP function safeguards in opposition to extreme coercion.

Options below Article 31 PRR

Given the unregulated ATD framework of the Return Directive, the Proposal goals to offer extra readability and streamline using and options to detention. Particularly, Recital 32 PRR stresses that “different much less coercive different measures to detention needs to be used when they are often utilized successfully…”. Article 31 PRR outlines that ATD shall be “ordered considering the person circumstances of the third-country nationwide involved […] and be proportionate to the extent of the chance of absconding assessed”. Then, the Article lists 5 different measures – greater than within the 2018 Fee proposal:

a. Obligation to usually report back to competent authorities

b. Obligation to give up identification or journey paperwork

c. Obligation to reside in a delegated place

d. Deposit of economic assure

c. digital monitoring

On the one hand, it’s welcome that the Article refers to a closed variety of options, because the Return Directive doesn’t specify any, resulting in totally different practices amongst Member States. Alternatively, a better studying reveals the Regulation doesn’t clearly state an obligation on the Member States to transpose all 5 measures. The availability states that “Member States shall present for any of the next measures”. This diploma of optionality conflicts with theGuidelines on Options to Detention offered by the European Union Company for Asylum, which recommends that nationwide regulation ought to define a minimum of two totally different different measures. Will it’s sufficient to uniform practices?

Furthermore, the deposit of economic ensures and the digital monitoring have confronted robust criticisms. The previous could undermine the precept of non-discrimination, because the applicability of ATD should not depend upon the person’s capacity to pay for it.  Some Member States have already applied a case-by-case versatile strategy, for instance, in Italy, it’s between € 2,500 and € 5,000.  Though the excessive thresholds render them ineffective options, undermining their potential software. As an alternative, the digital monitoring  could represent another type of detention as a result of its specific harshness and intrusiveness, together with potential stigma and knowledge safety considerations the monitoring knowledge gathered.

ATD with out Authorized Constitutive Parts

Crucially, there isn’t any indication or reference to the truth that ATD shall be utilized when the grounds for detention are met, neither below Article 31 nor Article 29 PRR. In distinction, Article 32(2) PRR states that when detention circumstances are not fulfilled, the detention measure shall stop, however the “different measures” below Article 31 can proceed to be utilized “to stop the chance of absconding”. It follows that what Article 31 PRR labelled as “options to detention” usually are not such, as they are often ordered within the absence of authorized grounds for detention.

Moreover, it isn’t clear how lengthy the alleged “options” could be utilized below the circumstances of Article 32(2) PRR. In line with Article 32(4) PRR, these measures could be utilized past the utmost detention interval. With no temporal restrict, they develop into different types of detention for use when the utmost detention interval is reached, however the elimination has not been carried out. This might be an instrumentalization of the safeguards of the appropriate to liberty. This example doesn’t present any safeguards for the unremovable migrants, particularly these subjected to return orders, however the Member State didn’t carry out the elimination in apply. Thus, the measures outlined in Article 31 PRR seem to not perform as much less coercive measures to use as a substitute of detention, however moderately as extensions of detention to stop absconding.

Coercive Measures for Totally different Functions: Authorized Overlap and Uncertainty

The Proposal introduces two new articles affecting returnees’ freedom, enshrining the duty to cooperate (Article 21) and to stay accessible throughout the return course of (Article 23). Each apply indiscriminately to all returnees solely as a result of they’re subjected to a return process.

Firstly, below Article 23(1) PRR three necessary measures are outlined to make sure the returnees’ presence within the territory. Amongst them, a better look reveals that the duty to report usually to the authorities and residing at a selected handle are framed each as measure to make sure the supply of TCNs (Article 23(1) l. b) and as different to detention (Article 31 l. c). Taking into account that the applicability of ATDs shouldn’t be confined to the presence of authorized grounds for detentions, a key query arises: will there be any operative distinction between 23 PRR and 31 PRR in apply?

Whereas the “obligation to cooperate” contains twelve necessary measures. Amongst these, letter a) requires returnees to stay within the territory of the Member State accountable for the return process. Letters g) and h) require notification of residence and any modifications. As soon as once more, the excellence between the duty to inform the residence and any modifications to it labelled as “obligation to cooperate,” and the duty to reside in a specific place as ADT, is unclear. This distinction could not even exist in apply when the designated place to reside is the place of residence.

As well as, as object of the duty to cooperate (Article 21), returnees need to “stay accessible in accordance with Article 23”. Consequently, when the obligations below Article 23 usually are not revered, Article 22, named “Penalties in Case of Non-compliance with the Obligation to Cooperate”, applies. In such a situation, the primary consequence listed is the “refusal or discount of sure advantages and allowances granted below Member State regulation to the third-country nationals involved”. Right here, the query is whether or not ADTs would nonetheless apply in conditions of non-compliance, even when the person circumstances demand so, or whether or not they are going to develop into carrots and sticks instruments.

As illustrated, the identical obligation -such as residing at a given place- could be present in Articles 21, 22 and 23. Right here lies a major authorized ambiguity, which raises considerations of foreseeability, authorized certainty, and proportionality. For example, may breaching this obligation result in sanctions below Article 22, presuming a threat of absconding, or shifting from options to detention? The Regulation lacks steerage on how you can navigate these overlaps. To reinforce authorized readability, a hierarchy of measures needs to be established, clearly linking the applying of ATD to detention grounds and limiting using obligations below Articles 21 and 23 to circumstances the place liberty shouldn’t be at stake.

All these measures influence liberty by limiting it to particular areas, justified as devices to make sure an efficient elimination. Whereas the nationwide regulation of 10 Member State already lists “non-cooperation” as an extra floor for pre-removal detention, ensuing within the corresponding obligation on returnees to cooperate, no knowledge affirm an enchancment of their return price. Nonetheless, the Fee valued as a advantage that comparable practices have been applied. This dynamic blurs the road between felony and administrative intent and could be addressed from the angle of criminology’s preventive theories of punishment. Nonetheless, it’s in keeping with the technique of the New Pact, which emphasises a preventive strategy.

The principle concern is that the measures enshrined within the obligation to cooperate (Article 21) and people to make sure the supply for the return course of (Article 23) apply indiscriminately. The important safeguards of the appropriate to liberty, which embrace the need of particular person assessments and compliance with the precept of proportionality, are at stake right here. The previous ensures that the measure is strictly used to realize the target of the Regulation, whereas the latter calls for ordering the measure that restricts much less the appropriate to liberty. Within the absence of those safeguards, the measures seem indiscriminate and disproportionate.

 The Lack of Alternative to Design Legally Binding Rights-Primarily based Options

The coercive measures proposed by the Fee purchase new nuances and overlap with the alleged “options to detention” below Article 31 of the PRR. On this regard, the Proposal missed the declared intent “to extend using environment friendly options to detention”. As illustrated, Article 31 fails to ship on the promise of ATD Quite than decreasing coercive practices, the Article institutionalises them, leading to expanded management over third-country nationals with out enhancing procedural ensures.

The Proposal missed a vital alternative to reinforce options by valuing a rights-based strategy. Proof from pilot initiatives have proven that case administration improves the compliance and cooperation of third-country nationals with out impacting their proper to liberty. Provided that the New Pact strengthens the hyperlink between arrivals and returns, integrating it may have performed a vital function in facilitating returns and assuaging the executive burden.

Furthermore, though Part 5 of the Proposal is devoted to the return of the minors, detention shouldn’t be dominated out, neither for unaccompanied minors, regardless of the European Court docket of Human Rights (ECtHR) judgment. Furthermore, Article 31 PRR doesn’t listing particularly designed ATD for them as family-based care. This omissions are compelling, as ECtHR has burdened that “the safety of kid’s greatest pursuits entails each retaining household collectively and contemplating options in order that the detention of minors is just a measure of final resort”.  Knowledge on Member States apply exhibits that just a few of them have ATD designed for household, regardless of their recognition nearly as good apply within the return process. 

Conclusion: Between Compliance and Coercion

This weblog put up illustrates how the proposal undervalues the function of ATD. Underneath the present Return Directive, ATD main measures for making certain elimination, whereas detention is a final resort – a minimum of, in line with the CJEU’s phrases. Nonetheless, within the PRR, ATD are measures along with detention. As presently drafted, Article 31 introduces a construction of obligations that may persist regardless the authorized foundation for detention. The result’s that in actuality, a few of these alleged options may really be so restrictive on individuals’s freedom to be certified as different types of detention. This political selection displays a broader pattern towards coercive measures throughout the Proposal. Until amended, these provisions threat serving as little greater than a symbolic gesture towards liberty, whereas embedding administrative coercion as a norm—disregarding the basic precept of proportionality. To uphold the Union’s authorized and ethical values, the Proposal have to be amended to re-centre the framework on the safety of the appropriate to liberty.

Vittoria Patergnani is a Analysis and Mission Assistant on the Université Libre de Bruxelles. She holds a five-year diploma in Regulation, with a thesis on ‘Pre-removal detention of irregular migrants and the options to it below EU regulation: a important evaluation of the Member States’ legal guidelines and practices.