On 28 March 2014, the European Commission published a communication which reports on «changes in return policy over recent years, analyses its impact, and presents some ideas for future developments”. The report looks at the implementation of the EU Returns Directive (Directive 2008/115/EC) including its impact on detention for return purposes. Key findings related to detention include:

  • The Return Directive has contributed to a convergence — and overall to a reduction — of maximum detention periods across the EU (6 months as a rule, with the possibility to prolong to 18 months in total). While the legal time limits of detention have increased in 8 Member States, they have decreased in 12 Member States. It is to be noted that the average length of detention applied in practice appears to be considerably lower than the maximum limit provided for”. The Directive has been heavily criticised by civil society groups, for its maximum detention period of 18 months and the fact that this has lead to an increased limit on detention in some member states.
  • There is great variation in practice on what constitutes regular reviews of detention. In some member states this takes place on a weekly basis and in others it’s only guaranteed at the end of the detention period (6 months)
  • There is more uniformity regarding the grounds for imposing detention, with the concept of “risk of absconding” in the directive impacting on the definition and criteria for detention used in Member states.
  • There is a movement towards a wider implementation of alternatives to detention in the EU. Most Member states now have alternatives to detention in their national legislation, but several states only apply these in rare cases. The main alternatives applied in practice are regular reporting requirements and designated residence. An obligation to surrender documents is also used.
  • Although all member states transposed the obligation to allow detainees to contact legal representatives and access health services in emergency situations, this is not applied in practice in some member states.
  • Six member states have not transposed the right of NGOs to access detention centres, but three of these have committed to doing so.
  • Seventeen Member States detain — at least sometimes — unaccompanied minors and nineteen Member States detain — at least sometimes — families with minors. Assistance to unaccompanied minors varies greatly in the EU.
  • Nine members states to not separate immigration detainees from ordinary prisoners, as required by the Return Directive.

The report highlights that a number of shortcomings remain, and sets out how these will be addressed, including that:

  • The Commission will adopt within one year a ‘Return Handbook’, on which the Return contact Group will be consulted. This will contain common guidelines, best practice and recommendations to be used by Member States’ competent authorities when carrying out return-related activities, in line with relevant international standards, and as a point of reference for return-related Schengen evaluations.
  • Promotion of alternatives to detention: The European Migration Network will carry out a study in 2014 on alternatives to detention in order to identify and spread best practices in this area.

For more information: