Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸10 unchanged paragraphs

on the proposal for a regulation of the European Parliament and of the Council establishing a common system for the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of the European Parliament and the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC

(COM(2025)0101 – C100047/2025 – 2025/0059(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2025)0101),

– having regard to Article 294(2) and Article 79(2), point (c), of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C100047/2025),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee,

– having regard to the opinion of the Committee of the Regions,

– having regard to Rule 60 of its Rules of Procedure,

Changed– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A100000/2025),(A10-0048/2026),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedRecital 12: (12) The Member State on whose territory the illegally staying third-country national is detected is responsible for ensuring his or her return, including onward returns to his or her country of return. Upon detection of illegal stay, Member States should swiftly identify the third-country national and verify possible security risks by querying the relevant Union and national databases. Member States should check for any vulnerabilities and, where relevant, perform a health check. It should be possible to rely upon an existing thorough assessment of all relevant circumstances made at previous stages of the procedure. Any change in circumstances and any new element evidencing a risk should be examined.

AddedAMENDMENTS BY THE EUROPEAN PARLIAMENT*

RemovedRecital 13: deleted

Addedto the Commission proposal

RemovedRecital 15: (15) Once it is established that the third-country national does not or no longer fulfil the conditions for entry, stay or residence on the territory of the Member States, a return decision should, where necessary, be swiftly issued based on an individual assessment taking into account all facts and circumstances.

Added---------------------------------------------------------

RemovedRecital 16: (16) The essential elements of a return decision issued by a Member State are entered in a specific form as a European Return Order and made available in the Schengen Information System together with the alert on return or through bilateral information exchange with another Member State. The European Return Order should in turn support the recognition and enforcement of return decisions issued by another Member State where the third country national moves unauthorised to another Member State.

Added2025/0059 (COD)

RemovedRecital 17: (17) Often, and especially in cases where there is no cooperation by the third country national, it is difficult for the competent authorities to identify the country of return at the time of issuing the return decision. In such cases, the competent authorities should, if possible, determine the country of return on the basis of the information available indicating the most likely country or countries in the return decision. Where the removal takes place to a third country which was not indicated in the initial return decision, that third country should be added to the removal order, the return decision should be amended, or a new return decision should be issued.

AddedProposal for a

RemovedRecital 18: (18) Where a third-country national present on the territory of a Member State is subject to an enforceable return decision from another Member State, that decision should be recognised and enforced. Recognition and enforcement of return decisions should facilitate and accelerate the return process on the basis of enhanced cooperation and mutual trust between Member States. They can also contribute to deterring irregular migration and discouraging unauthorised secondary movements within the Union, as well as limiting delays in the return process. The remedy against the return decisions should be exercised in the issuing Member State. This serves as an additional incentive to discourage secondary movements.

AddedREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

RemovedRecital 19: (19) From the date of entry into force of this Regulation until the date of application of the provisions on recognition and enforcement of return decisions issued by another Member State, it should be possible for Member States to put in place legal and technical arrangements to ensure that the European Return Order can be made available through the Schengen Information System. A year after entry into force, the recognition of enforceable return decisions, supported by the European Return Order, should become mandatory.

Addedestablishing a common system for the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of the European Parliament and of the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC

RemovedRecital 20: (20) The effects of national return measures should continue to be given a Union dimension by establishing an entry ban prohibiting entry into and stay on the territory of all Member States. The length of an entry ban should be determined with due regard to all relevant circumstances of an individual case. When an illegally staying third-country national is detected during exit checks at the external borders, it could be appropriate to impose an entry ban in order to prevent future re-entry and therefore to reduce the risks of illegal immigration.

AddedTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

RemovedRecital 21: (21) Third-country nationals can voluntarily comply with the obligation to leave or be returned by coercive measures through removal. The two types of return should be linked to avoid gaps in the system. Whereas cooperating third-country nationals should continue to be returned primarily through voluntary return, reinforced rules on removal seek to ensure a direct and immediate consequence in case the third-country national does not respect the date by which they need to leave. Coercive measures should be subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued.

AddedHaving regard to the Treaty on the Functioning of the European Union, and in particular Article 79 (2), point (c), thereof,

RemovedRecital 22: (22) Common rules are necessary to ensure that third-country nationals posing security risks and with no right to stay in the Union are efficiently identified and swiftly returned. It is necessary to ensure that relevant checks are carried out to identify and flag third-country nationals with security risks including by relying on the screening process as set out in Regulation 2024/1356 of the European Parliament and of the Council11 . For third-country nationals posing security risks, removal should be the rule, and it should be possible to derogate from the general rules in order to provide for entry bans, longer detention periods and from the use of specialised detention facilities so that those who threaten the security of Union are swiftly removed.

AddedHaving regard to the proposal from the European Commission,

RemovedRecital 23: (23) New rules should extend the possibilities for Member States to ensure returns to third countries through additional tools. It should be possible to put in place specific agreements with third countries for the purpose of providing Member States and the European Union with more options for returns subject to the conditions that the international human right standards and the principle of non-refoulement are respected by the third country concerned. In particular, the agreement should set out the modalities of transfer, the conditions for the stay in the country, the modalities in case of onward return to the country of origin, the consequences in case of violations or of significant changes adversely impacting the situation in the third country, and an independent monitoring body or mechanism to assess the implementation of the agreement. Such agreements will constitute an implementation of Union law for the purposes of Article 51 (1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’).

AddedAfter transmission of the draft legislative act to the national Parliaments,

RemovedRecital 24 a (new): (24a) To ensure the effective monitoring of fundamental rights during removals, a centralised European Monitoring Mechanism for Removals should be established within Frontex. This mechanism should be capable of monitoring all removals, including those taking place to and from third countries with which there is an agreement, and cover the entire removal process. The Mechanism should report on its findings and issue recommendations to Member States. It should replace the existing national monitoring mechanisms, and the pool of forced-return monitors currently managed by Frontex. To that end, amendments to the Frontex Regulation are required.

AddedHaving regard to the opinion of the European Economic and Social Committee,

RemovedRecital 26: (26) Where there are grounds for doubting as to whether or not the third-country national is a minor, an age assessment should be carried out. For the purpose of ensuring coherence across migration management in the Union the same procedure as provided for in Regulation (EU) 2024/1348 of the European Parliament and of the Council12 should be followed after checking any earlier age assessments. When carrying out age assessments, Member States should in particular take into account relevant guidelines from the European Union Agency for Asylum. / 12 Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (OJ L 222, 22.5.2024, p. 1, ELI: http://data.europa.eu/eli/reg/2024/1348/oj).

AddedHaving regard to the opinion of the Committee of the Regions,

RemovedRecital 29 a (new): (29a) Legal assistance and representation should consist of the preparation of the appeal or request for review, including, at least, the preparation of the procedural documents required under national law and, in the event of a hearing, participation in that hearing before a judicial authority to ensure the right to an effective remedy and to a fair trial.

AddedActing in accordance with the ordinary legislative procedure,

RemovedRecital 29 b (new): (29b) To ensure that the legal assistance and representation provided pursuant to this Regulation is adequate, it should be provided by a lawyer as defined in Article 1(2) of Directive 98/5/EC of the European Parliament and of the Council1a. / 1a Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ L 77, 14.3.1998, p. 36, ELI: http://data.europa.eu/eli/dir/1998/5/oj).

AddedWhereas:

RemovedRecital 30 a (new): (30a) This Regulation does not provide for an automatic suspensive effect of an appeal. However, it should still be possible for a third-country national to submit a request to suspend the enforcement of a return decision. In order to ensure that there is no duplication of assessments of the risk of non-refoulement, previous assessments, including in the asylum procedure, should be relied upon. It should remain the third-country national’s responsibility to indicate, in a timely manner, where there is a risk of non-refoulement and to request the suspension of the return decision. In such cases, and where the third-country national has not previously applied for international protection, Member States may refer the third-country national to the asylum procedure where appropriate.

Added(1) The Union, in constituting an area of freedom, security and justice, should have an effective common policy on the return of third-country nationals with no right to stay in or enter the Union. An effective return policy is a key component of a credible migration management system and constitutes an essential element for combating illegal migration.

RemovedRecital 32: (32) It should be possible to impose detention when proportionate and necessary, following an individual assessment of each case, including consideration of any situation of vulnerability, only for the purpose of preparing return and as a matter of last resort. For this purpose, detention could be imposed when there is a risk that third-country nationals abscond, when third-country nationals hamper or avoid return, or when they pose a security risk, or do not comply with alternatives to detention, or detention is necessary to determine or verify identity or nationality. The authorities should act with due diligence and detention should be maintained only for as short a period as possible and may not exceed 18 months. Where national law provides for the detention of minors, the best interests of the child should be a primary consideration. Other less coercive alternative measures to detention should be used when they can be applied effectively to illegally staying third-country nationals.

Added(2) This Regulation establishes a comprehensive common system for returning third-country nationals with no right to stay in or enter the Union based on a common procedure for return and readmission, effective cooperation with third countries, a system for the mutual recognition and enforcement of return decisions, a system for preventing and managing the risk of absconding and cooperation based on mutual trust between Member States.

RemovedRecital 37: (37) A systematic and coordinated approach to readmission among Member States is crucial to facilitate the return of third-country nationals. Insufficient follow up to enforceable return decisions risks hampering the efficiency of the common approach to returns. Enforceable return decisions should be followed by all necessary measures to implement the return, including the submission of readmission applications to third countries’ authorities, in cases where nationality is in doubt or a travel document needs to be obtained.

Added(2a) This Regulation is aligned with the Treaty provisions according to which the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental political and constitutional structures, including regional and local self-government. It shall also respect the essential State functions of the Member States, in particular ensuring territorial integrity, maintaining law and order and safeguarding national security, which remains the sole responsibility of each Member State.

Change 2

ChangedRecital(3) 38:To (38)contribute Whileto readmissionthe alsoimplementation dependsof onthe comprehensive approach set out in the cooperationRegulation (EU) 2024/1351 of thirdthe countries,European aParliament coherentand approachof shouldthe beCouncil, takena amongcommon Membersystem Statesfor toeffectively increasemanaging of the efficiencyreturn andof effectivenessillegally ofstaying readmissionthird-country procedures,nationals andshould tobe ensureput unityin amongplace. MemberThat States.system Transparencyshould andbe coordinationbased on engagementintegrated withpolicy-making thirdto countries,ensure includingcoherence inand effectiveness of the contextactions ofand negotiatingmeasures readmissiontaken instruments,by shouldthe beUnion ensuredand toits strengthenMember aStates coherentacting Unionwithin approach.their respective competencies.

Change 3

RemovedRecital 39 a (new): (39a) Personal data regarding unaccompanied minors should be transferred to a country of origin only after a thorough assessment finding that the transfer is in the minor’s best interest and will not endanger his or her well-being.

Added(4) The European Council has consistently underlined the importance for determined action at all levels to facilitate, increase and speed up returns from the European Union including by strengthening the link between the issuance of a return decision and the effective departure of the third-country national concerned. The European Council in October 2024 invited the Commission to submit a new legislative proposal, as a matter of urgency.

RemovedRecital 43: (43) A common system for returns should make full use of digital systems supporting managing returns, readmission and reintegration either operationally managed on Union level or by the Member States, with an emphasis on efficient administrative procedure, cooperation, information sharing and interoperability. The digitalisation of return management, to be regulated in a separate instrument, should give guidance on this matter.

Added(5) The Strategic guidelines for legislative and operational planning within the area of freedom, security and justice adopted by the Justice and Home Affairs Council on 12 December 2024 recall that a successful return policy is a fundamental pillar of a comprehensive and credible Union asylum and migration system. To this end, the strategic guidelines call for the development and implementation of a more assertive and comprehensive approach to returns, by upgrading the legal framework as a matter of urgency.

RemovedRecital 45: (45) The collection and analysis of reliable and comparable statistics on return, readmission, and the assistance of Frontex are essential for monitoring the effectiveness of this Regulation and for identifying areas for improvement, as they provide valuable insights into the efficiency of return procedures, the cooperation of third countries. Common standards and definitions for the collection and reporting of relevant data should be established to enable the Commission and the Member States to assess the impact of this Regulation and to contribute to making informed decisions on future policy developments.

Added(6) An effective return policy should ensure coherence with and contribute to the integrity of the Pact on Migration and Asylum and contribute to preventing illegal immigration to the Union and ▌unauthorised movements between Member States of illegally staying third-country nationals to safeguard the area without internal border controls while respecting fundamental rights.

RemovedRecital 46: deleted / (deleted)

Added(7) The Union and its Member States have been increasing efforts to make return policies more effective. Despite these efforts, the existing legal framework which consists of Council Directive 2001/40/EC and Directive 2008/115/EC, is no longer corresponding to the needs of the Union migration policy. Since the adoption of Directive 2008/115/EC in 2008, the area of freedom, security and justice and the Union's migration policy has considerably evolved. EU law in the area of migration has moved from legislation with minimum standards to bringing Member States' practices closer. The Commission sought to reform the return rules in 2018 with the proposal to recast the Return Directive. The Commission has also sought to support Member States in using the flexibilities of Directive 2008/115/EC through Recommendations (EU) 2017/2338 and (EU) 2023/682. However, the limits of the current legal framework have been reached.