Courts and the Rights of Returnees in Europe: What is missing from the Pact on Asylum and Migration?

Over the last decade, the judicial dialogue between domestic courts, the CJEU and the ECtHR has filled legislative gaps in the Return Directive. Through judicial interactions, courts have created space for the recognition of new rights, remedies and principles reflecting the realities of returns and Member States’ obligations under international human rights. Returnees have thus been recognised: a right to be heard by administrative authorities; a right to appeal before a court; an automatic suspensive effect of appeal in certain circumstances; and access to social benefits for the seriously ill and minor children.
In the political negotiations on the 2020 Pact on Asylum and Migration and on recasting the Return Directive, effectiveness of returns has been the primary driver for legislative reform. This intervention will specifically address the question of whether the 2020 Pact and the proposal for the recast of the Return Directive codify jurisprudentially developed standards.