Return Directive (2008/115/EC) in the Wake of the Migrant Crisis

Merve Agzitemiz

Return Directive (2008/115/EC) is a new step in the common immigration policy with the objective to create a common system for returning illegally staying third-country nationals. It has been subject to interpretation by the Court of Justice frequently in the last few years. The Directive has not been widely criticized in periods of tranquillity; however, it can be observed that in the wake of the migrant crisis it breaks out at several points.Current migrant crisis is a challenge to the Directive especially on grounds of protection of human rights, at least on three aspects. Firstly, as regards conditions of detention, though the detention should take place in principle in specialised detention facilities, there is a growing trend that migrants are kept in other places, which may result in inhuman or degrading treatment of migrants. Secondly, regarding period of detention, the detention of migrants for lengthy periods of time becomes more common which might collide with the right to liberty. In this respect, the special situation of vulnerable persons both with regard to conditions of detention and period of detention should be emphasised. Thirdly, concerning entry bans, these may have negative implications on the right to respect for private and family life, especially because of their length. Against this background, this paper seeks to determine whether the Return Directive is strong enough to bear the migrant crisis on grounds of protection of fundamental rights, in this sense, whether the interpretation of the Directive by Court of Justice is enough to protect the human rights of the migrants or should there be a revision of the Directive.

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