The New EU Return Regulation: A Step Towards Crimmigration?

In mid-June 2026, the European Parliament gave its final approval to the amendments to the European Union’s policy on the return of third-country nationals staying irregularly on Union territory. With 418 votes in favour, 218 against, and 30 abstentions, the new Return Regulation, which replaces Directive 2008/115/EC, formally aims to “speed up procedures, with full respect for fundamental rights and international law, including the principle of non-refoulement and the prohibition of collective expulsions, while preventing abuses and unauthorised movements within the EU”.

According to European Commission data, currently only about 28% of migrants ordered to leave European territory are actually returned to their country of origin. The new Regulation, proposed by the von der Leyen Commission in 2025, aims to increase this percentage by making expulsion procedures faster and more coordinated, also through a “European Return Order”, which provides that an expulsion decision adopted by one Member State can be recognised and enforced in other Union countries. This mutual recognition is initially optional and will become mandatory only after the adoption of an implementing decision by the Commission (planned for 1 July 2027), following verification of the technical systems’ effectiveness.

The adoption of the Regulation comes just days after the entry into force of the European Pact on Migration and Asylum and completes it. This final piece confirms the severity of the new European rules on migration, which will be governed by a rather stringent approach. European migration policy moves towards strengthening controls, extending administrative detention, and externalising procedures to third countries.

This post analyses three essential points of the Regulation: (1) the extension of the detention period, risk of absconding, and the obligation to cooperate; (2) removal to third countries, including “Return Hubs”; (3) the detention of persons posing a security risk.

A preliminary analysis reveals the convergence of Union policies towards the “ICE model”, characterised by a strict conflation of the irregular migrant-criminal binomial, thus confirming the trend towards a crimmigration model.

Detention period and risk of absconding

Abandoning voluntary return as the preferred type (Parusel), the Regulation introduces a significant novelty regarding the duration of detention: it may last up to 24 months, to which an extension of up to six months may be added if there is a change in circumstances or improved cooperation with a third country. More precisely, Article 32(3) states that detention does not exceed 12 months; however, if the return procedure “is likely to last longer owing to a lack of cooperation by the third-country national concerned, or delays in obtaining the necessary documentation from third countries, or in other exceptional circumstances provided for in national law, detention may be applied for a longer period but shall not exceed 24 months in a Member State”. Paragraph 3a then provides that, after the 24 months have expired, if there is a risk of absconding or a change of circumstances giving a reasonable prospect of removal, the period may be extended for a further six months (totalling 30 months). Furthermore, Article 32 states that if a person moves to another EU country and “his conduct constitutes a ground for detention”, “a new period of detention shall apply.” Previous detention periods are not counted; therefore, detention could potentially go far beyond the stated maximum.

Finally, paragraph 4 states that the expiry of the maximum detention period does not preclude the application of measures under Articles 23 (obligation to remain in a geographical area, to reside at a designated address, to report to authorities) and 23c (alternatives to detention: financial guarantee, electronic monitoring). Thus, a foreigner detained for two and a half years without being repatriated may subsequently be subjected to restrictive measures typical of criminal law.

The definition of “risk of absconding”, which serves as the basis for detention, is significantly broadened, and unlike the Return Directive, the Regulation provides a definition. This presumption applies where any of the following conditions are satisfied: the person has entered or moved between Member States without authorisation, is already subject to a return decision issued by another Member State, fails to cooperate with the authorities, breaches an entry ban, or resists removal through physical or violent means. With these clauses, detention is set to be used as a default rather than exceptional measure, and an expansive definition of risk of absconding means that personal freedom becomes the exception.

It is doubtful whether these provisions are compatible with Article 5(1)(f) of the ECHR, interpreted by the ECtHR in Saadi v. United Kingdom as requiring that detention be carried out in good faith, with a genuine connection to its purpose, and its duration must not exceed what is reasonably necessary. A system that makes detention the default rather than the exception appears difficult to reconcile with these standards.

Article 29(2) provides that detention may only be maintained for the purpose of preparing or carrying out removal. Under the previous Directive, Article 15(4) explicitly required release where there was no longer a reasonable prospect of expulsion. This safeguard has not been carried forward into the new Regulation. Nevertheless, the ECtHR held in Chahal v. United Kingdom (§ 113) that detention ceases to be lawful where removal proceedings are not pursued with due diligence, or where expulsion is no longer practically possible. The CJEU confirmed in Adrar (C-313/25 PPU) that Member States are under a continuing obligation to assess the risk of non-refoulement in each individual case. Where such a risk is identified, the person concerned must be released without delay.

Removal to third countries and “Return Hubs”

Proposed as an innovative solution, based on the examples of the “Albania Model”, as well as Trump’s model, Return Hubs are governed in Article 17, the basis for detention in third countries through bilateral agreements. These give Member States the possibility to deport a person to a country with which an agreement exists. The definition of “country of return” is broadened in Article 4(3)(c) to third countries “of transit on the way to the Union in accordance with Union or Member States’ readmission agreements or arrangements”. In such cases, the third-country national deported does not need to have any connection to the third country, nor do they need to have consented to being transferred there (Schmalz). Importantly, detention in such hubs is subject to the same limits as any other detention under Article 32 (maximum 30 months), and Article 17(4) explicitly prohibits the return of unaccompanied minors and families with minors.

The “Albania model”, now expressly regulated by Article 17, found an important indication of compatibility in Advocate General Emiliou’s Opinion of 23 April 2026 in Case C-414/25 Sedrata. In his view, the Return Directive does not prohibit the detention of third-country nationals in facilities located outside EU territory. This is subject to two conditions: the facilities must remain under the jurisdiction of the Member State concerned, and adequate procedural safeguards must be maintained. The transfer to a third country also entails an interference with private and family life which, under Article 8 ECHR, can only be justified if one of the exhaustively listed reasons applies.

Some legal debates about transferring people to countries with which they have no connection at all have focused on human rights situations there. This was a relevant issue in the urgent interim measure in a case concerning asylum-seeker’s imminent removal from the UK to Rwanda. The ECtHR stated that “the decision to treat Rwanda as a safe third country was irrational” and there was a “risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space”.

Detention of persons posing a security risk

Unlike the Return Directive, Article 16 expressly considers third-country nationals who pose a security risk, defined by the notions of public order, public security, and national security. Article 16(1)(b) applies, among others, to those for whom

there are reasonable indications for believing that they have committed a serious criminal offence as referred to in Article 2(2) of Council Framework Decision 2002/584/JHA […] or have committed an offence carrying a penalty involving the deprivation of liberty of at least two years under national law or have committed multiple offences carrying a penalty involving the deprivation of liberty of at least one year under the national law of the convicting Member State.

Dangerous individuals also include those for whom there are “reasonable indications” of involvement in crimes covered by the European Arrest Warrant.

The Directive allowed detention in prisons separate from ordinary prisoners if specialised facilities were unavailable. Today, Article 16(3)(c) provides that irregular (dangerous) migrants may be detained in prisons and, if possible, kept separate from ordinary prisoners. This constitutes a specific derogation from the general rule of Article 34(1), which prefers specialised facilities. The CJEU addressed this issue in Pham (C-474/13), where it found that, under the previous Directive, holding persons subject to expulsion together with ordinary prisoners was incompatible with the objective of a humane return system, but the new Regulation creates an express exception for security-risk individuals (Kummer).

Conclusion

This Regulation does not merely accelerate return procedures: it institutionalises a paradigm shift that systematically sacrifices fundamental rights on the altar of security and efficiency. By rendering detention quasi-automatic, extending it up to 30 months, and allowing it to be served in ordinary prisons for security-risk individuals, the text transforms administrative detention into a punitive tool indistinguishable from criminal sanction. The expansion of return destinations to third countries with no genuine connection to the individual, coupled with the arbitrary designation of “safe” countries, effectively outsources both detention and asylum assessment, circumventing the procedural safeguards that the ECHR and the EU Charter were designed to guarantee. In the wake of the European Pact on Migration and Asylum, this Regulation confirms the EU’s embrace of a coercive, exclusionary model that normalises violence against exiles, embeds far-right narratives into positive law, and systematically dismantles the very rights the Union purports to uphold. Whether national courts and the CJEU will curb these excesses remains an open question, but the legislative direction is unmistakable: Europe is no longer managing migration, it is waging a war against migrants.