Introduction

On 26 March 2026, the European Parliament approved, with some significant amendments, the proposed regulation on the return of third-country nationals residing irregularly on the territory of the Union (COM(2025)101 final). The English text of the measure voted by the Parliament at first reading, with a detailed indication of voting behaviour, is available here.

The measure was passed with 389 votes in favour (from right-wing and people's party members), 206 against (from left-wing and centre-left members), and 32 abstentions. Applause from the benches of the right greeted the outcome of the vote (watch the video). The text may now proceed to the inter-institutional negotiations between Commission, Parliament and Council (the "trilogue") for final approval.

The regulation will complement the set of measures forming part of the "Pact on Migration and Asylum" approved by the Union in 2024, which will gradually enter into force from the summer of 2026. The draft regulation aims to harmonise national practices which, within the framework of the "Returns Directive" (Directive 2008/105/EC), had gradually diverged and, above all, had proved ineffective. Both the Commission and the European Parliament emphasise that, at European level, only 20 per cent of returns are actually carried out.

The new regulation was particularly awaited because, amongst other things, it was expected to provide a legal basis for the practice — advocated by certain states (in particular Austria, Germany, the Netherlands, Denmark, and Greece) and already initiated by Italy — of establishing "return hubs" or "return centres" in countries outside the EU. This aspect was highlighted in the resolution of the Italian Senate approved on 25 June 2025 (available here), which made explicit the request that European legislation should include "the activities currently carried out in implementation of the 2023 Italy-Albania Protocol".

This text presents the content of the regulation and offers a preliminary critical assessment of certain passages. Throughout this text, the person referred to in the regulation as a "third-country national" (i.e., anyone who is not an EU citizen or who does not hold, by virtue of international agreements, rights equivalent to those of EU citizens with regard to freedom of movement) will often be referred to as a "migrant". This term should be understood in a very broad sense, encompassing also persons who do not enter Europe voluntarily, as well as individuals who no longer enjoy the international protection initially granted to them, or any person who, regardless of the reasons for their presence in a Member State, has lost the right to remain there.

Return or Deportation?

The regulation is divided into nine chapters. The first concerns certain general principles. In particular, it establishes that the new rules apply to third-country nationals in an irregular situation, i.e., individuals who do not, or no longer, meet the conditions laid down by law (in particular, the Schengen Code, Regulation (EU) 2016/399) for entry into or residence in the EU. The regulation, moreover, in Article 3, allows Member States to derogate from its rules and apply their own legislation (in compliance with certain minimum principles, including the principle of non-refoulement), in particular with regard to persons refused entry at the border pursuant to Regulation (EU) 2016/399 (Schengen Code), Article 14; those intercepted whilst attempting illegal entry into a Member State and who have not obtained authorisation or the right to reside there; or persons whose return has been ordered as a criminal sanction or as a consequence of a criminal conviction. Provision is also made for the possibility for Member States to derogate from the rules in respect of persons who pose a risk to state security. As we shall see, however, the regulation includes numerous provisions specifically dedicated to such "dangerous" migrants.

Chapter I contains, in Article 4, a detailed explanation of the terminology used, as well as a general clause concerning the necessary compliance with EU law, the EU Charter of Fundamental Rights, and relevant rules of international law, namely those relating to access to international protection and the prohibition of deportation to a country where a person's life and physical integrity are at risk (non-refoulement) (Article 5).

The most significant provisions are those in the aforementioned Article 4, which defines the notion of "country of return". This country may be not only the migrant's country of origin or the country in which they habitually reside, but also a transit country with which the EU or a Member State has a readmission agreement; a country in which the migrant has the right of entry or residence; a third country considered "safe" within the framework of an international protection procedure involving the foreign national (see Regulation (EU) 2024/1348, Article 59 — the highly controversial notion of a safe country cannot be dwelt upon here); the state (not an EU member, of course) in which the individual has already been granted asylum (see Regulation (EU) 2024/1348, Article 58); and, finally, a state with which the EU or one of its Member States has concluded an agreement or arrangement for the establishment of a "return centre", as provided for in Article 17 of the regulation.

In short, "return" may take place to a number of different countries, not only the country of origin. "Rimpatrio" is indeed the Italian term used in place of the English "return" and the French "retour", but in this context returning to one's "homeland" is only one of the options. Furthermore, the concept of "return" presupposes an autonomous decision, and, according to the European Economic and Social Committee, which examined the Commission's proposal (document C/2026/33, issued on 18 September 2025), return should primarily be carried out on a voluntary basis. In the regulation, however, the actions described are, for the most part, far from "voluntary". Hence, the argument put forward by certain observers and civil society organisations that this regulation should be characterised as relating to the expulsion or deportation of foreign nationals, rather than their return. In the text that follows, we shall continue to use the term "return", with the caveat that "deportation" is probably the more appropriate term.

Return Decision and Entry Ban

Chapter II governs the procedures for return (or, more accurately, as we have seen, expulsion and deportation). In the version approved by the European Parliament, Article 6 was deleted; in the Commission's proposal, this article was intended to cover measures by which Member States actively detect and check foreign nationals likely to be deported. This provision, criticised on various grounds, especially for its vagueness, was removed. The problem remains, however, of how to ensure the effective enforcement of returns (a point on which the Commission's draft insists strongly and which is further emphasised in the version adopted by Parliament), whilst avoiding the excesses of the "manhunt" that have manifested themselves in many states and, in a particularly spectacular fashion, in the USA following the recent measures of the Trump administration. 

The return decision must be issued by the Member State on whose territory the irregular migrant is found. The decision may even omit any indication of the state to which the migrant is invited to go, and provision is made for the translation into a language comprehensible to the recipient; the translation may be carried out by automated means. The decision must comply with the standard format of the "European return order", recognisable in all Member States, and must contain an order to leave the territory of the state. The possibility remains for the state to withdraw or suspend such an order if its authorities decide to grant a residence permit on humanitarian or other grounds. The order to leave the territory may also not be issued if the person irregularly present on European territory is identified in the context of a joint check carried out by European states on the territory of one of them, as provided for by the Schengen Code on border controls (Regulation 2016/399, Article 23a), or if two or more EU Member States implement the forms of cooperation introduced by Article 44 of the new regulation under examination. In these cases, the transfer of the third-country national from one European state to another takes place without a return decision.

The European return order issued by an EU Member State will be automatically enforceable in all Member States, without the need for formal recognition or further administrative checks. The model European order will be drawn up by the Commission by July 2027 and incorporated into an implementing decision. 

A Member State may decline to enforce a European order if it is contrary to its public policy or — and this is a significant indicator of the primary objective of this regulation — if return can be effected more swiftly on the basis of another measure. The Economic and Social Committee, in the aforementioned opinion (C/2026/33), observes that the automatic recognition of decisions should also be excluded where the Member State issuing the order is found to be systematically violating human rights or the rule of law.

A return order may be accompanied by an entry ban. An entry ban is imposed, in particular, if the migrant has not voluntarily complied with a previous return order, and also if other circumstances — for example, the migrant's lack of cooperation — lead state authorities to believe the migrant intends to attempt illegal entry again. An entry ban may also be issued without a prior return decision, if the irregular migrant is intercepted during checks carried out upon departure from an EU Member State. Parliament has added that an entry ban may be imposed after the foreign national has left the territory of the state in which they were irregularly residing. On humanitarian grounds, in particular in favour of foreign nationals who are victims of human trafficking, the state may decide not to issue the entry ban.

How long does an entry ban last? For persons recognised as a security risk, the ban may be permanent. Otherwise, the duration is assessed on a case-by-case basis. The ban may be revoked or suspended, and its duration may be reduced in various circumstances — for example, if the migrant demonstrates that they have voluntarily left the territory of the state following the return order. Provision is also made for the entry ban to be revoked if the foreign national, having been returned at the state's expense, reimburses those costs. This latter provision, introduced by Parliament, appears to create a double standard in favour of migrants who possess sufficient financial means to "regularise" their irregular situation.

Voluntary Return and Removal Order

Once the return decision has been adopted, it is hoped that the migrant will voluntarily comply with the measure (Article 13). The return decision must contain the date by which voluntary return must take place: no later than 30 days from the issuance of the decision — a decidedly problematic deadline for those who may have been residing in Europe for many years. National authorities may also order the immediate departure from the country. Once set, the date may be brought forward if the foreign national fails to cooperate. This is, in short, a “compelled voluntary return”, so to speak. If the return does not take place on a voluntary basis, the state issues a removal order.

The removal order may be issued (Article 12) in various non-cumulative cases: if the third-country national does not cooperate with the authorities; if they have travelled without authorisation to another EU Member State; if they pose a security risk; if they have not voluntarily left the country after having been ordered to do so; as well as — pursuant to an amendment introduced by Parliament — if the competent authorities consider that removal is necessary and proportionate, in accordance with national law, on the basis of other unspecified reasons. 

Whilst the return decision, as we have seen, may indicate several foreign countries as destinations or leave that field blank, the removal order must necessarily indicate the state to which the irregular migrant is to be transferred. If the person concerned considers that their transfer to the indicated country would entail a violation of the principle of non-refoulement (i.e., if in the country to which they are transferred there exists a real risk to their life and personal safety, or they may be exposed to torture or inhuman treatment), it will be the responsibility of the state authorities to direct the person to the appropriate procedures; in particular, they will be informed of the possibility of lodging an application for international protection. If the risk of refoulement arises, or if the removal order is challenged, the deadlines of the latter may be extended. 

The removal order may provide for coercive measures, including the detention of the migrant, where there is a risk of absconding or where the person poses a security risk. These matters are addressed in Chapter V, as we shall see. Removal operations necessarily entail a certain degree of coercion. The coercive force used must be necessary and proportionate, and the state is required to monitor all operations to ensure compliance with appropriate human rights standards, as well as to keep the state to which return is to be effected informed (Article 15).

A Special Regime for Foreign Nationals Posing a Security Risk

The regulation contains particular provisions applicable to foreign nationals who pose a security risk. This category includes individuals who present a risk to public safety, public order, or national security. However, Article 16 adds a list of individuals whose dangerousness is not established but presumed. These include foreign nationals in respect of whom there is "concrete evidence" that they have committed one of the serious offences to which the European Arrest Warrant applies (amongst others, participation in a criminal organisation, terrorism, trafficking in persons, corruption, racism and xenophobia, wilful homicide, rape, fraud… but also forgery of administrative documents and facilitation of illegal entry and residence); or who have committed an offence punishable by at least two years' imprisonment under national law; or persons in respect of whom there is "concrete evidence" that they intend to commit one of the aforementioned offences, whether as principal perpetrators, accomplices, or instigators. Also considered dangerous are individuals in respect of whom there is concrete evidence of participation in one of the conducts connected to the offence of terrorism described in Directive (EU) 2017/541 of the European Parliament and of the Council, as well as foreign nationals in respect of whom there is concrete evidence that they represent a threat to security under national law.

The establishment of the circumstances indicated above need not be carried out in a specific manner: the state authorities may rely on the thorough assessments already conducted in the context of asylum procedures or for the issuance of visas, or during border checks or screening operations carried out at hotspots at the EU's external borders.

Dangerous individuals are subject to special treatment that derogates from many of the rules ordinarily provided for by the regulation. As noted above, the entry ban issued against them may be permanent in duration (the original text proposed by the Commission provided for a period that could exceed 10 years, renewable for a further maximum of 10 years; the more severe measure is the result of Parliament's intervention). Furthermore, a removal order must be issued against such individuals as a matter of priority, and the enforcement of that order entails detention in custody (see Article 29(3)(c)), preferably in a section separate from that of other migrants held pending return. Any challenge to the removal order may not suspend its enforcement, unless the principle of non-refoulement is invoked.

Return Hubs

As anticipated, one of the most significant innovations introduced by this regulation is the possibility of transferring irregular migrants to a state outside the EU, following the conclusion of “an agreement or arrangement” between that state and one or more EU Member States, or with the EU itself.

Article 17 specifies that only countries in which internationally recognised human rights are respected and in which, in particular, the principle of non-refoulement applies, may be partners in such agreements.

It is worth noting that the provision refers to an agreement or arrangement. It would be more appropriate for such agreements to possess all the characteristics of international treaties and to be concluded with the full involvement of national parliaments, given that they impinge upon individual rights of crucial importance. The standard content of these agreements includes: the procedures for transferring migrants from the Member State to the third country where the person will be placed; the conditions of residence in the third country of the national transferred there; the obligations of the third country with regard to the protection of human rights and non-refoulement; and the consequences arising from any breach of the provisions of the agreement between the Member State and the third country. The agreement may also provide that the individual transferred to the third country may be returned from there to their country of origin or to another country to which deportation may lawfully take place. In this case, the agreement between the states concerned must also govern the consequences arising from any impossibility of effecting the transfer, the mutual obligations connected to deportation, and the repercussions on the implementation of the agreement arising from possible significant changes within the third country. Provision is also made for the establishment of an independent mechanism for monitoring the implementation of the agreement.

It is worth noting that Article 17 recognises, but does not impose, the possibility that the agreement may govern the conditions of detention of the irregular foreign national in the third country. A provision that is, in truth, difficult to interpret, requires Member States to inform the Commission and other Member States in advance of agreements concluded with third countries, in particular if other EU Member States share a border with the third country in question (thus, it would appear that if Italy were to conclude an agreement of this kind with Bosnia, it would be required to inform Croatia, with a view to potentially associating it with the agreement itself).

The final paragraph of Article 17 specifies that such agreements with third countries may not concern the transfer of unaccompanied foreign minors.

It is not certain that the provisions of the regulation on so-called "return hubs" fully meet the expectation, expressed by the Italian Senate, of "regularising" the practice initiated by Italy and Albania of establishing "hubs" outside EU territory to deport migrants, but also for the management of refugee status determination procedures. Article 17 does not provide for identification procedures or refugee status determination procedures to be carried out in these hubs, but only for migrants subject to a return procedure to be placed in the third country; the actual return may take place from the territory of the Member State (to which the migrant must be transferred back from the hub) or, if the agreement with the third country so provides, from the hub itself. These would, in short, be extraterritorial centres for the expulsion and, in case, detention of irregular migrants, but not facilities at which the functions of determining the status of irregular migrants could be "outsourced", nor, still less, at which judicial guarantee procedures could be conducted. 

The concern remains, in any event, regarding the effective application of international and European human rights standards on the territory of a state outside the EU. This concern is also clearly expressed by the Union’s Economic and Social Committee. Paradoxically, the certainty of applying the rights provided for under European legislation to individuals placed on the soil of a third state would be fully achieved by imposing on migrants the administrative detention in facilities managed by the Member State, with no possibility of external exit — that is, by subjecting them to a drastic restriction of their civil rights.

Section 5 of Chapter II concerns irregular unaccompanied minor migrants. It has already been noted that they may not be "returned" to return hubs on foreign territory, and this appears to be consistent with the principle of the best interests of the child referred to in Article 18. The application of this principle, however, does not go so far as to exclude the measure of detention, as we shall see.

This section includes a provision on the assessment of minority age. The multidisciplinary criteria set out in Regulation 2024/1348 apply. In cases of doubt, priority in the verification procedure is given to persons who pose a risk to national security or public order (Article 19(2)), and not, it may be observed, to those who find themselves in a situation of particular vulnerability. This is another indication of how, in general terms, security concerns take precedence over those centred on individual rights.

The return of an unaccompanied minor requires the appointment of an adequately trained representative for the minor. The return of the minor entails their handover, in the country of destination, to a family member, a legal guardian, or an appropriate reception facility.

Obligations of the Migrant

The regulation “generously” places a variety of obligations on irregular migrants, largely aimed at facilitating their return/deportation. Under Article 21, migrants must cooperate with the authorities of the state responsible for carrying out the return procedure, without absconding and moving to other countries; at the request of the European Parliament, a prohibition on "physically obstructing" the enforcement of return has been added. The surrender of personal documents also extends to their digital versions. It is prohibited to use aliases and forged documents, or to provide information that may mislead the authorities; all information relating to their movements and the places passed through in various countries must be provided, including addresses, telephone numbers, etc. The foreign national must undergo the biometric checks provided for under European legislation and provide all personal information and information relating to their family members that may be relevant for the purposes of return, as well as any documents relating to entry, residence, or expulsion issued by other countries. If certain documents are retained by the authorities, the migrant receives a photocopy. 

It should be noted that the foreign national may be searched, and that the search extends to their personal belongings, such as bags and suitcases, as well as to mobile phones and other electronic devices. These may be seized. Searches must be conducted with respect for the dignity and physical and psychological integrity of the person (and the guarantees provided for under EU law and national legislation apply), but may take place even without their consent.

Also with a view to making return possible, the foreign national may be subject to certain measures restricting their freedom of movement, even in the absence of a risk of absconding (if the latter is present, the applicable measure is administrative detention, as we shall see). The restrictive measures provided for include the obligation to remain within a specific geographical area or to reside at a specific address indicated by the authorities, to report to the competent authorities at defined intervals, or other measures provided for under national legislation (for example, forms of monitoring by means of electronic devices). Suspensions of these restrictive measures may be authorised, and certain exceptions are in any event provided for (in particular, movements to attend administrative or judicial proceedings must be notified but do not require authorisation). Breaches of the obligation to remain available to the authorities responsible for return are sanctioned proportionately. One possible sanction is the detention of the individual, as we shall see.

Guarantees and Remedies, and the Problem of the Suspensive Effect on the Enforcement of Return

Articles 24 to 28 (Chapter IV) govern the specific guarantees and remedies applicable to return proceedings. The first guarantee for the foreign national is to be informed of the manner and timing of the procedure. The information must also cover the existence of services and programmes supporting reintegration in the country of return (Article 46). The provision stipulates that the assistance given to the person to be returned is closely linked to the level of cooperation demonstrated by the migrant: it will be greater for migrants in a situation of vulnerability and lesser for those who are not in such situations; more extensive for those who follow the voluntary return route and less so for those who are subject to a removal order or have received a criminal conviction. The migrant will be informed of the possibility of challenging the measures concerning them and of the right to request legal assistance. This is, however, a standardised form of information: posters, leaflets, or online documents, in various languages and drafted in an accessible manner. Specific information must be provided to unaccompanied minors.

The regulation provides for free legal assistance from a qualified practitioner where the migrant lodges an appeal before a judicial authority. For unaccompanied minors, as noted above, the appointment of a legal representative is provided for in any event.

Free legal assistance from a lawyer or an organisation comprising legal practitioners is not automatic and depends on the migrant's financial means; in order to request it, the migrant must declare their financial situation; if this improves, the assistance previously provided may be withdrawn. Free assistance does not apply to higher levels of judicial proceedings and does not cover appeals considered vexatious or abusive. In general, the regulation specifies that such assistance may not be more favourable than that provided for citizens of the state in question. It is for the state to make provision for free legal assistance in administrative proceedings.

Decisions relating to the return decision, the entry ban, and the removal order are subject to judicial challenge. The time limit within which such measures may be challenged is set at a maximum of 14 days (Article 27(1)). The judiciary to be seized is that of the Member State that issued the contested act; therefore, if a measure decided by the authorities of one Member State is enforced in another (as in the case of the "European return order"), the appeal must be lodged before the authorities of the former Member State.

The most significant (and questionable) provision of this Chapter IV is that relating to the suspension of enforcement of the challenged measure. The draft regulation drawn up by the Commission provided for a suspension for at least the period during which a challenge is possible (14 days, as noted above). The European Parliament, however, has established that a challenge does not automatically produce suspensive effects on the validity of the act. It will be for the judicial authority itself, upon the migrant's request or on its own motion, to decide whether to suspend the enforcement of the return measure for a minimum period of 14 days or for the entire duration of the judicial proceedings (of first instance) brought against that measure. The decision must take into account all circumstances that have emerged in the previous stages of the procedure, including asylum procedures. The immediate enforceability of the return order, even if appealed before a court, applies unless the legislation of the state concerned provides otherwise. It nonetheless betrays an evident preference for the immediate operability of the deportation, even in the presence of procedural defects or breaches of the law that only a judicial authority can ascertain. This point has also been the focus of critical observations by the European Economic and Social Committee in the opinion mentioned above.

Risk of Absconding and Administrative Detention

Article 29 indicates the cases in which the return procedure (which includes verifying the conditions for return, enforcing removal from the country in which they were found, or readmission to the country of destination) provides for placing the irregular migrant in detention facilities (administrative detention). The objective of detention is exclusively to facilitate and make the return procedure more effective; to assess the appropriateness and legality of the measure, the vulnerability of the concerned person must be taken into account.

The cases are exhaustive, but are described with a certain degree of flexibility. The principal hypothesis is the existence of a risk of absconding — we shall return to this shortly. There is also the case of the foreign national who seeks to avoid or obstruct return at any stage of the procedure. As noted above (Article 16), a foreign national who poses a security risk may also be detained, as may a person whose identity or nationality must be established or verified. Detention may also be ordered against those who fail to comply with one of the cooperation obligations provided for in Article 21 (in particular, failure to submit travel documents), or against those who fail to comply with the alternative measures to detention that we shall discuss below. Finally, the European Parliament has added a further hypothesis: where state authorities consider that relevant factors are present that make detention necessary for a timely and effective return. With this last provision, which refers to national legislation, the exhaustive nature of the grounds for detention is circumvented, all the more so given that the regulation also delegates to the national law for the accurate determination of the other situations. The decision about the detention of the migrant may be issued by the competent administrative or judicial body, in written or even oral form; it must be reasoned in fact and in law and indicate the possible avenues of appeal. It must be communicated to the recipient in a language they understand, including through the use of interpreters or other translation services.

The risk of absconding (Article 30) constitutes one of the principal grounds on which the detention of a foreign national awaiting return may be ordered. A risk of absconding is presumed in the case of anyone who has entered or moved without authorisation to the territory of another EU Member State, or who has attempted to do so, as well as in the case a third-country national already subject to a return measure issued by another EU Member State is intercepted on the territory of the state, including on the basis of a consultation of the Schengen Information System (SIS). As we have seen, a person who fails to comply with the freedom-restricting measures provided for in Article 23 is also considered to be at risk of absconding, as is a person who has re-entered an EU country in breach of a previous entry ban, and a person who "physically or violently opposes" removal. Other indicators of the migrant's intention to evade the authorities that may justify detention include: the lack of a stable domicile or a reliable address; behaviour or statements demonstrating an intention not to accept return; the suspicion that, in the imminence of a return, the person may make themselves untraceable; lack of cooperation with the authorities responsible for carrying out the return; and the use of false or forged identity or travel documents, or the provision of false information. 

As can be seen, the risk of absconding may be based on a variety of behaviours, presumptions, or predictive assessments. The European Parliament has added that national laws may introduce further criteria or factors, provided they are compatible with the objective of ensuring swift and effective enforcement of return.

Also with a view to rendering the return process more efficient, the state authorities may replace detention with one or more other measures restricting freedom of movement (Article 31): the obligation to report periodically to the authorities, the surrender to them of identity or travel documents, the obligation to reside in a specific locality, to lodge a sum by way of guarantee, the use of electronic surveillance devices, restrictions on freedom of movement or curfew obligations, as well as any other relevant measure permitted under the legislation of the state. In the event of non-compliance with such obligations, detention once again becomes the applicable measure. The right to challenge all such measures before a court is guaranteed.

But how long may the detention of a foreign national awaiting expulsion last? The new regulation provides that detention must last as short a time as possible, since the objective is to return the irregular migrant as swiftly as possible; furthermore, as soon as the reasons for detaining the person cease to exist, they must be released or subjected to less restrictive measures. That said, however, Article 32 provides that the duration of detention may reach 12 months, extendable by a further 12-month period in the absence of cooperation, if the country of destination fails to provide documents in a timely manner, or in the presence of other circumstances to be defined by national law. Upon the expiry of the 24-month period, recourse may be had to the alternative measures referred to in Articles 23 and 31 (assignment to a specific geographical area, obligation to report periodically to the authorities, lodging of a security deposit, seizure of travel documents, etc.). Migrants who cooperate will see return operations accelerated, with a reduction in detention time.

The maximum detention period of 24 months provides for an exception in the case of migrants identified as dangerous pursuant to Article 16 who have been placed in penal institutions (in separate sections, where possible): these individuals may be detained beyond the maximum time limit, for an indefinite period. This provision is particularly worrying, especially given that a "detention" of two years would itself appear to constitute a punishment without conviction, rather than a measure suited to managing migration.

The existence of the conditions justifying detention must be reviewed by the state authorities every six months; in the Commission's proposal, it was every three months. The three-month period is retained for unaccompanied minors, but their legal representative may, by giving reasons, request a review at any time. Detention ordered by an administrative authority must be subject to challenge before a judicial authority — national rules apply. In cases of exceptional migratory flows, the statutory time limits may be extended (see Article 47).

Conditions of Detention

Articles 34 and 35 are dedicated to the conditions of detention. Three categories of detained migrants may be identified. The generally applicable conditions provide that migrants awaiting return are to be held in dedicated facilities (Member States may, however, also use prisons for "dangerous" migrants; in such cases, they must be accommodated "where possible" in separate sections). In exceptional cases, temporary facilities may also be set up to increase the number of available places. Member States are, in any event, invited to establish detention facilities adequate to meet current needs and those of the next 12 months (see Article 43).

Migrants must have access to open-air spaces, although this may be restricted where necessary for the orderly functioning of the facility. They may, upon request, rapidly make contact with family members and lawyers, subject to the implementation of practical arrangements and save for considerations dictated by security reasons. Consular representatives, family members, lawyers, and NGOs may have access to detained migrants, at the latter's request, but Member States may, by their own legislation, impose limits on such contacts where objectively necessary on grounds of security, public order, and the administrative management of the facility. The rules of the facility must be communicated to its occupants in writing in the languages they know or are presumed to know.

Special rules apply to "dangerous" migrants within the meaning of Article 16. These individuals, who, as we have seen, may be held in penal institutions; if placed in "ordinary" migrant facilities, they shall be held in high-security sections, separated from others or subject to increased surveillance, for the period strictly necessary for managing the risk they pose, and always with a view to facilitating their return to a third state.

The third group consists of unaccompanied minors, families with minors, and persons with vulnerabilities. The latter, including persons with special needs, must receive particular attention, especially from a healthcare perspective. Minors and their families may be detained only as a measure of last resort and for the shortest possible period, taking into account the principle of the best interests of the child; they must be placed in facilities that guarantee privacy and adequate healthcare and sanitary services, and be accompanied by trained staff. Minors must have access to age-appropriate recreational and play opportunities and to education, in the most appropriate form, taking into account the duration of detention.

As can be seen, these are minimal rules which, moreover, provide for considerable margins of restriction at the disposal of Member States. Furthermore, Article 47 provides that Member States, in situations where an exceptionally large number of third-country nationals must be returned, such as to impose a significant and unforeseen burden on detention facilities, administrative staff, or the judicial system, may derogate from the provisions requiring the separation of migrants awaiting expulsion from other categories of detainees, or the separation of families and minors from other groups of migrants. No provision is made for the establishment of independent monitoring mechanisms to ensure compliance with these standards, nor are there explicit references to the role that could be played by international or national bodies for the prevention of torture and inhuman or degrading treatment.

Readmission and Conditionality on Cooperation with Third Countries. Support for Return and Reintegration

Chapter V of the regulation governs the procedure for the readmission of the irregular migrant to the country of destination, whose cooperation is necessary to confirm the migrant's nationality and provide travel documents. The European travel document model introduced by Regulation (EU) 2016/1953 will be used where necessary. In this activity, provision is made for the possibility of obtaining the cooperation of Frontex and the involvement of EU officials. The conclusion of arrangements between Member States and foreign partners is also encouraged with a view to facilitating and accelerating readmission procedures. The transfer to territories outside the EU that are not recognised as states does not entail the recognition of such territories as legal and political entities.

In relation to the readmission procedure, the European Parliament has decided to add to the regulation a new article, placed after Article 37, which makes explicit the link between readmission measures, which represent the external dimension of return policies, and EU policies on development, international trade, visas, and diplomatic relations in general. In other words, the EU and its Member States will take into account the degree of cooperation of third countries in adhering to agreements for the readmission of their nationals irregularly present in the EU and in facilitating their reintegration in the country of destination, within the broader framework of international cooperation policies. Insufficient cooperation in readmitting irregular migrants could lead to restrictions on visas or trade policy measures aimed at reactivating return flows in a satisfactory manner. This provision highlights the EU's intention to compel cooperation from third countries in its readmission policies, using forms of diplomatic, economic, and commercial pressures that have hitherto been considered independent of the migration issue.

Also connected to the subject matter of this Chapter V of the regulation is the obligation on Member States to provide migrants with support services for return and reintegration. The support provided to migrants should not, however, be understood as a right, so that a return ordered against a person who has been unable to avail themselves of such services cannot, for that reason alone, be considered unlawful. The advisory assistance provided to a migrant may vary to the point of being withdrawn in light of whether they cooperate or not with the return procedure, whether they accept return voluntarily or are subject to a removal order, whether they are in a situation of vulnerability or have received a criminal conviction, and in the presence of other circumstances specified in Article 46.

These provisions reflect a vision that seeks to apply a "carrot and stick" approach to migrants and destination countries, which betrays a "punitive" approach to the matter and could produce effects contrary to those desired.

Exchange of Information and Cooperation Between Member States and the EU. Final Provisions

The implementation, at the European level, of a common return system requires, in addition to a common procedure, a common system for the recognition and enforcement of return measures, and the pooling of financial and staff resources to carry out the various actions provided for, as well as a mechanism for the exchange of personal data relating to migrants. Chapter VII identifies which data Member States may exchange with one another for the purpose of carrying out return, readmission, and reintegration procedures (Article 38), and which data they may share for the same purposes with third countries (Articles 39, 40, and 41).

Between EU Member States, EES, VIS, SIS, Eurodac, ETIAS, and ECRIS-TCN data may be exchanged via the EU Information System platform, enabling full interoperability. These datasets cover a wide range of information, including sensitive data: personal data (including those of family members), biometric data, information on nationality and travel documents, information on place of residence, addresses and telephone numbers, information on visas or residence documents issued by EU Member States, information on return and readmission operations, including the reasons for the issuance of removal orders or entry bans, information on the detention of the migrant and data on any criminal convictions or other elements contributing to their classification as a dangerous person, information on their vulnerability status, and on the degree of cooperation provided in return procedures.

National authorities and, where applicable, Frontex, may also transmit many of these data to third countries to enable the readmission and reintegration of the migrant. Articles 40 and 41 focus in particular on the transmission of data relating to criminal convictions and medical conditions. These sensitive data may be transmitted to the authorities of third countries, provided that such transmission does not entail risks to the principles of non-refoulement and ne bis in idem. In any event, the person concerned must be informed of the transmission and guaranteed that such data will be used exclusively for the purposes indicated, in compliance with the regulation on the protection of personal data.

Chapters VIII and IX of the regulation contain provisions on cooperation between the Member States and between them and the EU (in particular with Frontex) with a view to the creation of the common return system, as well as on the collection and processing of accurate and uniform statistical data for the evaluation of the return policies introduced by the new legislation and for assessing their impact.

Conclusion. A Regulation That Hardens the Condition of Irregular Migrants, Restricts Their Rights, and Weakens Guarantees

The regulation, for which the negotiation procedure between Parliament, the Commission, and the Council now begins, with a view to its final approval, represents an important piece of the new regulatory framework governing immigration and asylum in the European area. Regulation 2024/1949, on the border return procedure, covers only a relatively limited fragment of return cases, concerning only asylum seekers whose application is rejected in the "border" procedure, that is, according to the legal fiction on which that legislation is based, in a phase that precedes the entry of a third-country national into the territory of the Member State.

The regulation, as approved by the European Parliament, presents several problematic aspects from the perspective of the rights of irregular migrants. Among these, particular note should be taken of the presence of numerous clauses allowing Member States to introduce significant modifications to the common regime, generally to the detriment of the migrant, in the name of the principle — emphatically reiterated in the introductory text of the regulation — that the defence of territorial integrity, the guarantee of public order, and national security remain within the exclusive responsibility of the state. The many provisions of the regulation concerning the treatment of migrants who pose a security risk to the state, whose detention pending return may last indefinitely and for whom the entry ban may be permanent, are a clear indicator of how the defence of borders and national security represent the overriding value pursued by this legislation. In the same vein, one may read the expanded definition of the concept of "return", which includes, amongst other things, the transfer of an irregular migrant to the territory of a non-EU country with which the person has no connection, but where the Member State has established, on the basis of an agreement with the third country, facilities specifically dedicated to accommodating migrants awaiting return (return hubs). Whilst it appears to be excluded that procedures other than those strictly related to return may be carried out in these facilities (as was originally envisaged by the 2023 Italy-Albania agreement, that allowed for determination status procedures to be conducted in the third state), it is evident that this situation constitutes an advanced form of "outsourcing" and “externalisation” of immigration management procedures, aimed at limiting the responsibilities of Member States and the EU in this sensitive area.

Migrants are furthermore subject to onerous obligations to cooperate with the state that intends to return them, which is afforded numerous instruments of pressure on the migrants themselves — and also on their countries of origin. Migrants, in turn, do have the right to challenge before a court the expulsion or other measures affecting them, but, in general, such appeals do not have a suspensive effect on the measures adopted. This fact, together with the very short time limits for lodging an appeal, renders such remedies and guarantees of limited practical use and effectiveness.

Apart from what has been said with regard to individuals dangerous to national security, it is a serious matter that the maximum duration of detention of irregular migrants awaiting identification or return has been raised to 24 months, and that there is no explicit exclusion from detention measures for unaccompanied minors and families with minors. The conditions of detention, moreover, are regulated in a manner that leaves wide discretionary margins to state authorities, with scant attention to establishing monitoring mechanisms and preventing abuses of the rights of those detained.

Finally, it is concerning that the intention — made explicit in the version of the regulation adopted by Parliament — to link the other forms of diplomatic and commercial cooperation and EU visa policies to the cooperation of third countries in the readmission of irregular migrants. The willingness, perhaps purely instrumental, of the third countries of origin of irregular migrants (but also of those through which migrants have transited or in which they have obtained first asylum, for example) to readmit to their territory nationals who have attempted to enter Europe illegally thus becomes a decisive criterion for developing cooperation policies in the political, diplomatic, economic, or commercial spheres, taking precedence over other potentially significant criteria, including the manner in which the effective integration of returned migrants is achieved. The conflation of legal considerations and human rights protection with political or commercial dynamics risks creating negative short circuits not only to the guarantee of individual rights but also to the foreign policy of European states and the EU. All the more so given that, as the Economic and Social Committee observes in its opinion of September 2025, this "aggressive" return policy is not accompanied by equally vigorous measures or initiatives on the side of promoting legal and safe migration pathways.

All these problematic aspects of the regulation ought to be revisited. At the very least, an indication of a maximum duration of detention for "dangerous" migrants should be reintroduced, the duration of detention for others reduced to below 24 months, the suspensive effect of a judicial challenge to a removal order restored, and the exclusion of any detention measure for unaccompanied minors reinstated.