The Return Directive (Directive 2008/115/EC) is a European Union legal instrument adopted by the European Parliament and the Council on 16 December 2008. It establishes common standards and procedures in EU Member States for returning third-country nationals who are staying irregularly on their territory. The directive applies to all EU Member States except Ireland, plus the Schengen-associated states (Iceland, Liechtenstein, Norway, and Switzerland).
Key provisions include:
- Return decision: Member States must issue a return decision to any third-country national found to be irregularly present, though humanitarian or other grounds may justify granting a residence permit instead.
- Voluntary departure: As a rule, returnees should be given between 7 and 30 days to leave voluntarily before forced removal.
- Entry ban: Return decisions may be accompanied by an entry ban, typically not exceeding five years, barring re-entry into the Schengen area.
- Detention: Pre-removal detention is permitted only when less coercive measures are insufficient, capped at 6 months and extendable to a maximum of 18 months in specified circumstances.
- Safeguards for minors and families: Detention of unaccompanied minors and families is treated as a last resort, with special attention to the best interests of the child.
- Non-refoulement: The principle of non-refoulement must be respected throughout the procedure.
The Court of Justice of the EU has clarified the directive in several rulings, including El Dridi (C-61/11, 2011), which held that Member States cannot impose prison sentences solely for irregular stay before exhausting return procedures, and Achughbabian (C-329/11, 2011).
In September 2018, the European Commission proposed a recast Return Directive aimed at speeding up procedures, tightening voluntary-departure rules, and harmonising border procedures. Negotiations continued as part of the broader Pact on Migration and Asylum, adopted in 2024, though the recast directive itself remained under discussion. Civil society organisations, including ECRE and Amnesty International, have repeatedly criticised the directive's detention provisions and the use of entry bans.
Example
In 2011, the Court of Justice of the EU ruled in El Dridi (C-61/11) that Italy could not imprison an Algerian national solely for non-compliance with a removal order, because doing so undermined the Return Directive's objectives.