ECRE has published a comments paper on the recently adopted Regulation establishing a common system for the return of third-country nationals staying illegally in the European Union, commonly referred to as the Return Regulation, which was adopted in October 2026. It provides ECRE’s analysis of most of the Regulation’s key provisions with a focus on their implications for fundamental rights, procedural safeguards and the challenges arising during implementation. It also includes recommendations to EU member states (MS) and the European Commission (EC) on how to mitigate the risks associated with the new rules and ensure compliance with EU and international law.
The Return Regulation is aimed at establishing a more “effective” and “harmonised” EU return system and increasing the number of returns. However, ECRE’s analysis raises serious concerns about the direction of EU return policy and the increased reliance on restrictive and coercive measures. Rather than addressing longstanding structural obstacles to return, including situations in which people cannot be returned for legal or practical reasons beyond their control, the Regulation places greater emphasis on enforcement, expanded obligations on individuals and sanctions for non-compliance. Moreover, despite its objective of greater harmonisation, several of its provisions leave considerable discretion to MS, potentially resulting in significant differences in national practices.
The Return Regulation significantly expands the list of countries to which third country nationals (TCNs) can be returned against their will, including countries with which they have no meaningful connection. It also provides a legal basis for EU MS to establish so-called “return hubs” in third countries through agreements or other arrangements. ECRE strongly opposes such transfers due to the serious risks that they pose to fundamental rights, including violations of the principle of non-refoulement, arbitrary detention, inadequate reception conditions, limited access to effective remedies and the possibility of people being stranded in third countries without a realistic prospect of onward return.
The Return Regulation also introduces a list of broad and vague obligations for TCNs to co-operate with authorities throughout return procedures, including providing information and documentation, co-operating with third-country authorities and complying with additional requirements under national law. These obligations, combined with expanded criteria for assessing the “risk of absconding” and sanctions for non-compliance, may result in people being subjected to restrictive measures, including detention and criminal penalties, even when they are unable rather than unwilling to co-operate. In addition, the Return Regulation introduces intrusive investigative powers, including searches of private homes, personal belongings and electronic devices, raising serious concerns about the rights to privacy, family life and the protection of personal data.
Regarding immigration detention, the Return Regulation broadens the grounds for detention and extends the maximum detention period to 24 months, with a possible additional six-month extension under certain circumstances. These changes make detention a more routine measure of return enforcement rather than a measure of last resort.
ECRE has previously raised concerns about the implications of the Return Regulation on access to effective remedies. These include shorter appeal deadlines, the removal of the explicit requirement for an ex nunc examination and the absence of automatic suspensive effect of appeals. Such restrictions may undermine affected people’s abilities to challenge return and removal decisions effectively, particularly when there are risks of refoulement or other irreversible harm. ECRE has called on EU MS to ensure effective access to legal assistance and judicial protection, and to maintain or introduce automatic suspensive effect of appeals, particularly where fundamental rights concerns arise.
ECRE continues to advocate for an approach to return policy that respects fundamental rights, prioritises voluntary return and provides opportunities for regularisation and legal residence for people who cannot be returned, particularly when obstacles to return are beyond their control. Such an approach would better protect people’s rights and dignity while offering a more sustainable and proportionate response to the challenges faced by EU MS.
With the adoption of the Return Regulation, attention now turns to its implementation at the national level. While most provisions will become applicable following a one-year transitional period, certain provisions, including those concerning return hubs, are already in force. ECRE urges EU MS to make full use of the discretion available under the Return Regulation to maintain higher protection standards, preserve existing safeguards and avoid unnecessary restrictions on fundamental rights. The fact that the Return Regulation permits certain restrictive measures does not mean that EU MS are required to introduce or apply them to their fullest extent. Effective implementation must remain firmly grounded in the EU Charter of Fundamental Rights, international human rights law and the established case law of European courts.
The comments paper is available here.
ECRE’s comments papers on the legislation that collectively forms the Pact on Migration and Asylum are available here.