Return policy of the European Union: Legal aspects – Katarzyna Strąk

The monograph is a comprehensive discussion of legal aspects of the European Union’s return policy. The main purpose of the research carried out as part of a project of the National Centre for Science was to determine whether all the actions taken by the European Union, including in particular all the legal instruments adopted by it, are able to guarantee the effectiveness of the European Union’s return policy which can be manifested by ending the illegal stay of a citizen in the territory of any Member State or by obtaining the right to further legal residence there.

The monograph covers not only an analysis of the provisions of Directive 2008/115 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, including the legal status of the return decision, but also the issues of operational cooperation of Member States and cooperation with third countries in the field of return, as well as solidarity and financing instruments of the European Union return policy.

The author puts forward the thesis that the EU return policy can be assessed as effective only if certain conditions are met: the number of return decisions issued by Member States equals the number of persons who have actually and permanently left the territory of those countries and, at the same time, a person staying illegally leaves the territory of the European Union and not only that of a particular Member State, the departure is permanent and, moreover, the departure takes place as soon as possible and the fundamental rights of that person are not violated. She also points out the following mechanisms which guarantee the effectiveness of the return policy: the obligation to issue decisions ordering a return, treated as a principle, the ban on re-entry, not only to the territory of a given Member State, but also to the territory of the entire Union, the mutual recognition of decisions ordering a return, the strengthening of operational cooperation of Member States, including the organisation of joint flights (in cooperation with FRONTEX), the cooperation of Member States with consular offices of third countries, the financing of the EU return policy, the priority of voluntary departures over forced returns, the limitation of the use of coercive measures such as detention measures and the system of appeals. The author notes that the obligation to respect fundamental rights often conflicts with the ability to achieve the objectives of the return policy in many Member States.

The first chapter presents the principles of the EU return policy, secondary law instruments, as well as the issue of protection of fundamental rights in the EU, including the protection of fundamental rights in the return policy and the role of the EU Court of Justice in ensuring such protection. The second chapter is devoted to the personal scope of the return policy, as well as to the exclusions arising from Directive 2008/115, from the case law of the Court of Justice and from the freedom of movement. The most important chapter of the monograph is the third chapter, which analyses the legal nature of the return decision, including its two essential elements: the deadline for voluntary departure and the entry ban. It also provides a detailed description of the return procedure for persons staying illegally and examines the relationship between the procedure and the conflicting criminal law rules of the Member States. The fourth chapter analyses the procedural guarantees available to a person subject to return proceedings. The fifth chapter covers the legal nature and application of detention. The sixth chapter describes the institution of removal and the related operational cooperation between Member States, including assistance in the case of transit for the purpose of return by air and the organisation of joint return flights. The seventh chapter covers the institution of readmission. The eighth chapter deals with the mutual recognition of return decisions. The ninth chapter presents the principle of solidarity and fair sharing of responsibility as well as the financing instruments of the EU return policy. The conclusion contains an attempt to evaluate the legal aspect of the return policy.

Wydanie: Warszawa 2019
Stan prawny: 21.12.2018 r.
Wydawca: Wolters Kluwer
Seria: Monografie
ISBN: 978-83-8160-136-8
Ilość stron: 396
Publikacja dostępna w Bibliotece INP PAN sygn. 54495