Adoption of the EU ‘Return’ Regulation: the death of international law

ℹ️Read the summary of the analysis here.

On 26 March 2026, following on from the recent rights-violating legislative reforms (the European Pact on Migration and Asylum, the Schengen Code reform, the redefinition of the concept of ‘safe countries’...), MEPs approved a new instrument that effectively annihilates the rights of migrant people and continues to dismantle EU law, and, by extension, international law. 

In the blink of an eye, the hard-right’s repressive agenda has prevailed. And what little rights remained have been shattered. In a historic acceleration, the far right has, in barely a year, pushed through a new common system for the expulsion of third-country nationals without the right to reside in the EU (known as the ‘Return Regulation’), repealing the 2008 Return Directive. Another milestone in the war on migrants that began 30 years ago, this Return Regulation consolidates the long-standing erosion of rights by crossing new red lines regarding the rights of foreigners. This new text, which leaves Member States considerable leeway, will undoubtedly lead to further violence against migrant people: increased criminalisation, widespread detention in camps, externalisation on all fronts, heightened risks to their physical and mental integrity,the institutionalised dismantling of rights.

This regulation clearly aims to take the ‘Europeanisation of the worst’ [1] a step further by giving substance to the ambitions of those states most opposed to migration, and by exacerbating or creating new violations of rights on a transnational scale. Above all, it illustrates Europe’s anti-migration obsession and the embrace of far-right ideas that are infecting both the public sphere and the institutions of the Union.

A tightening of European migration policies under the influence of the far right

The Return Regulation, which will be binding on Member States, follows on from the European Pact on Migration and Asylum [2] – which establishes common rules for the cut-price management of immigration and asylum and already opened the door to widespread rights violations (obstacles to the right to an effective remedy and legal assistance, brutal detention practices that are increasingly informal and precarious, and a new procedure for border returns). Thus, this regulation aims, on the one hand, to fill the ‘gaps’ in the Pact by ‘simplifying, facilitating and accelerating’ the procedures for deporting people who don’t benefit from the right to reside within the Union. On the other hand, it aims to satisfy the demands of the European far right, which was calling for even harsher standards towards migrants. The position of the Council of the EU (8 December 2025) had already toughened the Commission’s initial text (11 March 2025). The alternative compromise adopted by the LIBE Committee on 9 March – and for which the negotiating mandate was confirmed by the European Parliament’s plenary session on 26 March – is even more repressive, resulting from an alliance between the right and the far right, struck after several weeks of behind-the-scenes negotiations.

An obsession with security at the expense of fundamental rights

Following on from the numerous, well-documented violations of rights [3] resulting from the 2008 ‘directive of shame’ – and the normalisation of violence against people on the move, which has for years been employed as a deterrent strategy [4] – this text unashamedly contributes to the erosion of the rights and freedoms of foreign nationals. Whilst claiming – but only for appearances’ sake – to act with “full respect” for them, even though no impact assessment preceded this regulation, as required by current European legislation.

The language used in this text reveals nothing but hostility and mistrust towards those without the right to reside in the Union, who must be got rid of in the name of ‘taking control’ and ‘effectiveness’ in the fight against so-called irregular immigration.

Emphasis is placed on the need to guarantee “territorial integrity, the maintenance of public order and the safeguarding of national security” within the Union [5] . The grounds for a “security risk” are no longer limited to serious crimes but have been extended to criminal offences punishable by at least two years’ imprisonment, or to any threat to security under national law. For migrants allegedly posing this “risk”, exceptions to the (strict) general rules are introduced (entry bans and longer detention periods, specialised detention centres). Whilst measures aimed at detecting and surveilling people without the right to reside in the Union have ultimately been removed from the latest version of the text, their inclusion in a recital leaves the door open for the Council to reintroduce intrusive investigative methods to track them down. Furthermore, there are numerous provisions that directly undermine fundamental rights.

Systematic mass detention

Under previous legislation, the detention of foreign nationals was to be a measure of last resort. The new regulation no longer bothers with such considerations (except for unaccompanied minors – at least in theory), and detention becomes de facto systematic with an expansion of the grounds for detention [6] .

This, whether formal or disguised (e.g. the use of electronic tagging), may apply to all categories of foreign nationals, including those deemed ‘vulnerable’: minors (unaccompanied or accompanied), asylum seekers, and people whose state of health is, in principle, incompatible with detention.

Furthermore, the maximum period of detention is increased from 18 to 24 months (2 x 12 months) ‘in a given Member State ” (Art. 32-3) – meaning that detention periods can be cumulative across Member States – and can be extended indefinitely in the event of threats to “public order”, public or internal “security”, or in the event of an offence. However, European courts have consistently held that administrative detention must be exceptional and proportionate. It should also be noted that in the event of a ‘security risk’, the text provides for the legal possibility that such administrative detention may take place in prisons, in designated sections, or alongside common law prisoners.

It is clear here that the systematic detention of migrants – in camps or prisons, including in cases of non-cooperation with the authorities – is punitive and criminalising. This is despite the fact that they are deprived of their liberty because they do not meet the requirements for entry into or residence in a European country, and that Member States have obligations to respect rights under ratified international conventions. Finally, the criminalisation of migrants leads to recurrent violations of their fundamental rights and fuels racism in both migration policies and among the general public.

Deporting faster and further

This new text demonstrates the EU’s determination to allow deportation at any cost and to prevent foreign nationals deemed ‘undesirable’ from setting foot on European soil, once and for all.

A person subject to a removal procedure will be required to actively cooperate with the authorities regarding their forced return, failing which they may face sanctions, particularly financial or criminal penalties (including imprisonment). They may also be subject to a search and have their personal belongings seized (including electronic devices), which may infringe upon the rights of asylum seekers, the right to privacy and the protection of personal data.

The aim is to speed up forced removals through the mutual recognition and enforcement of removal decisions between Member States, potentially without individual review of cases between the country that issued the expulsion order and the one enforcing it, which risks undermining the principle of non-refoulement. Furthermore, it will now be possible to deport a person without waiting for the final removal decision, as the automatic suspensive effect of an appeal against that decision has been removed, which may undermine the right to an effective remedy.

Under the pretext of circumventing the alleged lack of cooperation from countries of origin or transit – which could lead to sanctions – or the practical impossibility of returning a person, the new European legislation also broadens the definition of ‘country of return’. This provides for the possibility of deporting migrant people to third countries they have never set foot in – with the notable exception of unaccompanied minors (Art. 17-4) – with which they have no connection (nationality, transit or residence), and without their consent, as this requirement has simply been removed from the new text. To this end, Member States or the EU will be able to negotiate agreements (formal or informal) with countries outside Europe (return hubs), and will simply be required to inform the European Commission. It will be up to these third countries to ‘manage’ the populations returned from Europe (detention, deportations?), without any provision for a mechanism for ex ante or ex post monitoring of these deportations by the European institutions, and without a suspension clause in the event of rights violations. This text also permits the sharing of data with third countries, including data relating to criminal convictions.

Member States are thus completely absolving themselves of the consequences and repercussions of these deportations, in breach of the principle of Member States’ extraterritorial responsibility in cases of dangerous return [7] . Furthermore, if the country of return cannot be determined, it will be possible to issue a deportation order that specifies none… or to designate several, which in both cases will hinder the ability to challenge these decisions. Furthermore, there is no need to declare the third country of return ‘safe’, except for asylum seekers whose applications have been deemed inadmissible.

Finally, bans on re-entry into the European Union following deportation may be imposed even before a removal order has been issued, or even after the person has left the territory. The maximum duration of this ban (previously five years) – initially extended to 10, then 20 years – is ultimately not specified in the latest version of the text [8] , except for persons who would pose a security risk, in which case the ban may be indefinite (i.e. permanent). To add insult to injury, ‘Member States may make the lifting of an entry ban conditional upon the reimbursement of the costs incurred in removing the third-country national’ (Art. 11-3).

Declaring third countries ‘safe’

To carry out their anti-migration policies and shirk their responsibilities regarding reception and international protection, European states have relied for over 20 years on the concept of ‘safe countries’. This label, intended to be effective and in theory conditional upon respect for the rule of law and effective protection in situ, conveniently designates strategic geographical areas as safe. As provided for in the European Pact, this concept has been reformed. On 10 February 2026, the European Parliament thus adopted two texts that drastically limit the scope of the right to asylum.

The first text establishes the first common and harmonised European list of ‘safe countries of origin’, comprising Bangladesh, Tunisia, Morocco, Kosovo, Colombia, Egypt and India – a list that is staggering given the abuses against migrants reported in these countries [9] .

Furthermore, all countries applying for EU membership are automatically considered ‘safe’ (with the exception of Ukraine). This initial concept allows Member States to examine applications for protection under an accelerated procedure when they come from nationals of a so-called “safe country of origin”, in violation of the right to an effective remedy and respect for the rights of the defence. Furthermore, as the United Nations High Commissioner for Refugees (UNHCR) has pointed out, the application of the safe country of origin concept would, in principle, prevent an entire group of asylum seekers from obtaining refugee status, which would contravene the Geneva Convention [10] , as well as being contrary to the principle of non-discrimination on grounds of nationality.

The European Pact on Asylum and Migration also provides that a country may be considered partially ‘safe’ and that the accelerated procedure may also apply to foreign nationals from countries where the rate of acceptance of asylum applications in the European Member State of arrival is less than 20%.

The second text broadens the concept of ‘safe third countries’, but without providing a list. This allows an asylum application to be declared inadmissible without substantive examination for persons who have passed through a ‘safe third country’, on the grounds that the person could have sought asylum there, with a view to returning them there. However, automatically classifying a country as ‘safe’ may lead to a person being returned without a thorough examination of their individual circumstances, which would undermine the principle of non-refoulement, and without the appeal having suspensive effect, in violation of the right to an effective remedy.

Legalising existing outsourcing practices

The EU and European countries have for years sought to outsource their responsibilities regarding migration and asylum management [11]. By first delegating border controls and maritime interceptions (Morocco, Libya, Turkey, Tunisia, ...), then seeking to delegate detention and/or asylum processing (Rwanda, Albania, the 2025 letter of intent between the Netherlands and Uganda aimed at creating a ‘return centre’ for rejected asylum seekers), and finally by outsourcing deportations (Tirana/Cairo deportation, May 2025 [12] ).

On the other hand, the externalisation of asylum is more favored than ever by MEPs. Whilst the most recent initiatives in this direction (the UK–Rwanda deal of 2022 and the Italy–Albania deal of 2023) have failed, having been struck down by national and European courts, on 15 May 2024, 15 Member States sent a letter to the European Commission calling for the development of a common system for the externalisation of asylum processing, drawing inspiration in particular from the Italy-Albania protocol, and pushing for the establishment of ‘return hubs’ in ‘safe third countries’ to which those being returned could be ‘transferred’. For its part, the European Commission has, contrary to common sense and international law, described the relocation of asylum procedures to third countries as an “innovative solution” [13] .

Finally, building on discussions surrounding the Return Regulation, five EU member states (Germany, the Netherlands, Austria, Denmark and Greece) wasted no time in seizing the opportunity. Forming a coalition, they met on 5 March 2026 with a view to ‘concretely implementing’ externalised camps outside the EU to which people deported from Europe would be sent [14] . They are now working to negotiate formal or informal agreements to this effect with non-EU countries.

Unprecedented attacks on the rule of law

On 22 May 2025, nine EU Member States (Italy, Denmark, Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania and Poland) signed an open letter calling for “a new and open-minded discussion on the interpretation of the European Convention on Human Rights”. The signatory states criticise the European Court of Human Rights’ overly broad interpretation of the Convention in relation to immigration, particularly regarding the prohibition on subjecting a person within their jurisdiction to inhuman or degrading treatment or punishment (Art. 3) —a prohibition which is, however, absolute and admits of no exceptions [15] — or the protection of private and family life (Art. 8). Through this frontal assault on the judiciary, these states are in reality demanding greater flexibility to depart from basic safeguards in immigration law…

The legislative initiatives of recent months reflect the Member States’ clear desire to free themselves from European law as it currently stands, which for the time being acts as a barrier – at least in theory – to the violation of their international obligations, the aim being to establish a new legal framework that would allow them to shirk their responsibilities in the field of migration without difficulty.

There remains the hope that these attempts to undermine rights will be challenged during the trilogue negotiations and/or, ultimately, by the European courts…

Whilst EU law is supposed to protect individual rights and safeguard freedoms, for decades it has been trampling on them in the name of a fabricated ‘migration threat’. In the wake of the European Pact and other forthcoming reforms (renegotiation of the Facilitation Directive, amendment to the Frontex Regulation), new red lines have been crossed, and the Return Regulation confirms the reshaping of EU law to adapt it to the racist, anti-migration and anti-democratic ideology that prevails across Europe and far beyond.
 

This overt policy of mass detention and externalisation confirms – if confirmation were still needed – the foundation of the policy of deterrence, coercion and criminalisation within the EU, against which Migreurop has been fighting for 20 years. More than ever, the network and its members reaffirm their commitment to upholding the rights of migrant people and opposing this narrative of hatred. Migreurop will continue to work towards broadening the collective imagination to conceive of alternative migration policies that are radically different, resolutely inclusive, based on solidarity and decolonial principles, centred on freedom of movement and settlement for all, and focused on the strict respect for rights.

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