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Deportation and readmission

EU member states to get more freedom in latest deportations proposal /// Member states push for wiggle room on mutual recognition of deportation orders

EU member states to get more freedom in latest deportations proposal

As negotiations over the EU’s deportation regulation continue, the Danish presidency has presented its second compromise proposal.

While the first compromise text, analysed in the previous Outsourcing Borders bulletin, saw considerable changes - stripping away human rights safeguards and anything else standing in the way of deportations - this update appears more procedural, ‘tuning up’ the language, particularly around deportation orders.

That said, this version of the text (pdf) continues the trend of watering down safeguards and human rights obligations, and giving states more latitude to detain and deport people at their pleasure.

A key change is the following addition, in the section on so-called “return hubs”:

Deficiencies in relation to specific parts of the territory of the third country or to identifiable category of persons should not prevent the conclusions of such an agreement or arrangement, provided that sufficient guarantees are in place to ensure the full respect of the rights of the third country nationals which are concerned by such agreement or arrangement.

This clause lowers the human rights standards by which partner third countries are judged. A “return hub” may be established in such a country, even if human rights “deficiencies” persist, so long as those deficiencies don’t in theory affect the people being deported there.

The document also goes further in delineating the compliance standards expected of partner third countries depending on whether they are expected to be a final destination for deportees, or merely a stop before onward travel. The text allows for the possibility of detention in third countries.

Finally, member states have been afforded even more latitude to detain, search and otherwise deprive people of their liberties in the name of effecting returns. The new proposal – apparently at the behest of member states – gives more room for states to ground those procedures in national law.

Other notable changes in the second revised text include:

• entry bans after deportation could last twenty years, rather than ten;
• while unaccompanied minors would be protected from “return hubs”, families with children would not;
• public health concerns have been added as grounds to detain someone and/or derogate from other protections in the regulation;
• the proposal enshrines language giving member states the option to choose between a range of countries to deport someone to (for instance, countries of origin or transit or one with which the EU or member state has a return arrangement);
• in cases of an age dispute of a possible minor, states are expected to rely on “age assessments completed under previous procedures”;
• member states are given wider latitude to extend detention beyond 24 months;
• obligations to detain people in a “humane and dignified manner” have been further diluted;
• states may issue an entry ban against someone even if they leave the territory before a deportation order is issued;
• language around what makes someone a security risk has been loosened, from ‘clear’ indications of risk to ‘reasonable’ indications;
• language around member state obligations to ensure non-refoulement has been loosened; and
• member states may communicate with “non-recognised third country entities” (i.e. the Taliban) for the purposes of deportations. This does not, however, amount to “diplomatic recognition”. This clause, while in the original Commission proposal, had been removed from the first compromise text.

Notably, this compromise text does not include updates on the mutual recognition of deportation orders, one of the thorniest issues (see below).

Member states push for wiggle room on mutual recognition of deportation orders

A paper (pdf) circulated by the Danish presidency on 3 October re-emphasises its desire for more mutual recognition of deportation orders among member states.

A key part of the overall deportation plan, mutual recognition is the subject of much discussion. It appears to be one of the most contentious aspects of the overall process, with the most recent draft of the deportation regulation describing the relevant sections as “not ready”.

The key issue at stake appears to be the mandatory mutual recognition proposed by the Commission:

The Commission’s intention is that mandatory mutual recognition will send a clear message not only to all illegally staying third country nationals, but also to our citizens, that once a return decision is issued in one of the Member States, it will be implemented across the entire Schengen area.

However, some member states have argued that enforced recognition of other member states’ deportation orders may not always be the most efficient strategy and may in fact be more burdensome than just doing it themselves. The Presidency has listened to member state concerns, and proposed relevant exceptions. It also proposed extending the period before recognition becomes mandatory for another three years.

This matter appears to have been discussed further at the Justice and Home Affairs Council meeting 13 October 2025.