Send Them Home? Why the EU Return Regulation Fails Both Migrants and Member States.

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On Wednesday 17 June, the European Parliament approved the Return Regulation in plenary, with 418 votes in favour, 218 against, and 30 abstentions. Following the vote, members of the right and far-right factions could be heard celebrating, setting the tone for what many see as the “ICE-fication” of Europe. So, what does the newly approved legislation entail?

Under the new Regulation, a return decision will oblige non-EU nationals without a legal right to remain in a member state to leave the country immediately or within a specified period. They will be required to cooperate with the relevant national authorities and may be detained for up to 24 months, with a possible six-month extension, in preparation for their return. Additionally, national authorities may carry out further investigations, including, but not limited to, personal and premises searches, as well as the seizure of personal belongings. Furthermore, national authorities may transfer migrants to so-called “return hubs” in third countries on the basis of agreements concluded with the member state concerned. The European Commission has welcomed the approval of the legislation, claiming it will create “a truly European system [...], establishing a coherent and coordinated approach towards return”.

While proponents claim the Regulation is compliant with international human rights law, human rights experts argue that it risks reinforcing practices that are fundamentally incompatible with it. Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, states are prohibited from transferring individuals to countries where they may be at risk of serious harm. Although the legislation does not require migrants to be returned to their country of origin, it allows them to be transferred to countries with which they may have no prior connection. As assessing protection risks and monitoring conditions become more difficult outside EU territory, the measure inherently increases the risk of individuals being transferred to countries where their lives or safety may be under threat, potentially making the Regulation incompatible with international human rights law.

Building on this, while unaccompanied minors are excluded from the legislation, families with children may still be subject to its provisions, including detention and transfer to third countries. However, as the authoritative guidance of the Committee on the Rights of the Child has made clear, “immigration detention can never be in the best interests of the child and should be prohibited”. The Regulation may therefore once again fail to comply with international human rights law. Beyond these legal concerns, the legislation risks worsening racial discrimination across the board. By targeting migrant communities, non-EU nationals may be deterred from accessing essential services as well as from reporting crimes, for fear of being profiled and possibly issued a return order.

In this context, the Regulation ultimately risks becoming counterproductive. Built on the premise that only around 20% of return orders are carried out, this figure obscures a far more complex reality. On the one hand, many return orders are unforceable, often because of family unity, health conditions, or non-cooperation from the country of origin. While these are only a few examples, they illustrate how a low return rate does not necessarily reflect a failure of enforcement, but rather legal and practical restraints. On the other hand, migrants may fall into irregular status not because they entered the EU unlawfully, but because European migration rules operate as intended. For instance, a non-EU national who initially held a legal right to reside in the EU because of family ties may lose that status following the disintegration of those relationships, thereby becoming irregular.

As some have argued, what is needed, then, is a Regulation that addresses the root problem: irregularity. If the case of the United States is anything to go by, return policies alone offer only a short-term solution and are likely to generate more problems than they resolve, including the normalisation of human rights violations and the deepening of divisions along ethnoracial lines. For the EU to legitimately claim to be a defender of human rights, this commitment must be reflected in its policies, both internally and externally.

written by Chiara Fachin