Meijers Committee’s specific considerations concerning the provisions on detention and access to judicial remedies in the Return Directive (addition to CM2409)

In addition to our comment addressing the preparation of the recast Return Directive 2008/115/EC, the Meijers Committee submits some specific considerations related to detention and access to judicial remedies. In our comment of December 2024, we already emphasized the need for the harmonization of procedural guarantees. This need for harmonization of rules also concerns the right of regular judicial review of the (continuing) necessity of detention and standards for the conditions of detention. Below we provide further specifications of such necessary safeguards based on the right to liberty as protected in Article 5 European Convention on Human Rights (ECHR) and 6 of the Charter for Fundamental Rights (CFR). Generally, the Meijers Committee recommends maintaining the text of the current Article 15 of the Return Directive to ensure the protection of the right to liberty of persons, also in accordance with the definition of necessary safeguards by the European Court of Human Rights (ECtHR) and the interpretation by the Court of Justice EU (CJEU) of the right to liberty within the context of the current Return Directive. This would create continuity and certainty, as national authorities work reasonably well with the current text and case-law of the CJEU. Amendment would lead to more (expensive) procedures, which would hamper the effective return of illegally staying third-country nationals and as such the principle of effectiveness (effet utile) of EU law.