In a communication to the European Commission, European Parliament, and Council of the European Union, 16 UN Special Procedure mandate holders have raised alarm over the risks posed by the EC’s proposed Return Regulation, expressing serious doubts about its compatibility with international human rights obligations. Among the many critical issues identified–such as threats to the principle of non-refoulement and concerns over racial and religious profiling–the experts draw particular attention to the proposal’s implications upon detention practices across the EU, cautioning that the regulation would normalise punitive and disproportionate measures and likely result in an expanded use of detention across member states.
In March 2025, the EC unveiled its proposed Return Regulation–new legislation intended to establish a common system for the return of third-country nationals from the union and increase the EU’s return rate. Replacing the 2008 Returns Directive, the new regulation seeks to provide member states with “clear, modern, simplified and common rules for managing returns effectively,” noting that at present, “the current patchwork of 27 different national return systems, each with its own approach and procedures, undermines the effectiveness of returns at the Union level. This calls for a thorough overhaul of the way return policy is legislated within the EU.” Amongst its proposals, the regulation envisages mutual recognition of return decisions across the EU, the expansion of member states’ enforcement powers–including the broader use of detention orders–and the use of “return hubs” in third countries for the removal of “unreturnable” non-nationals.
Responding to the commission’s proposal–as well as the Council of the European Union’s proposed amendments to the regulation–16 UN Special Procedure mandate holders (including the Special Rapporteur on the human rights of migrants, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and the Working Group on Arbitrary Detention) issued a scathing critique of the proposed legislation. Focusing on the aspects of the proposal within the scope of their mandates, the experts raise doubts about its compatibility with international human rights obligations, concluding: “We urge the European Parliament to amend the Commission’s proposal to ensure the respect of human rights norms and standards, including the principle of non-refoulement; prohibition of arbitrary detention, torture and ill-treatment, and racial discrimination; the due process and right to an effective remedy; and economic and social rights.”
Arbitrary Detention and Disingenuous ATDs
Under the Commission’s proposal, there is no requirement for authorities to determine whether other sufficient but less coercive measures (or “alternatives to detention”) can be applied when weighing a detention order. This is a significant step away from the 2008 Returns Directive, Article 15(1) of which provides that detention may only be ordered when other less coercive measures cannot be applied. The UN experts argue that this could result in detention being applied “as the rule rather than the exception,” and would therefore be considered arbitrary (“immigration should be considered arbitrary if the State does not demonstrate that there are no less invasive means of achieving compliance with its immigration policies”).
Commenting on this proposal, the GDP’s Michael Flynn said: “The EU proposal to remove from the return regulation the requirement to assess less coercive measures (or ATDs) as part of detention decision-making procedures would undermine EU member states adherence to the fundamental norm of the right to liberty, injecting arbitrariness into the entire legal framework.”
On the other hand, the proposed regulation foresees expanding the use of various “alternatives to detention” (ATDs)–including reporting obligations, residing in a specific place, and electronic monitoring–however it promotes applying these measures outside the framework of adjudicating detention orders and instead as additional measures to detention (when detention is not, or is no longer, justified). Responding, the UN experts flatly rejected the idea that this conception of ATDs was “genuine,” stating: “Labelling such measures as ‘alternatives to detention’ is therefore misleading and normalises the use of restrictive measures and surveillance. We oppose using alternatives to detention as alternatives to release and turning personal freedom into an exception. As the Special Rapporteur on the human rights of migrants recommended, there should be safeguards in place to ensure that those eligible for release are not diverted into alternative measures.”
This concern is supported by research showing that when employed outside a narrow procedural framework and not strictly connected to a necessity and proportionality evaluation procedure, ATDs “inevitably become instrumentalised in ways that … lead to further harms committed against migrants and asylum seekers,” according to the GDP’s Flynn. In an ATD literature review, Oxford’s Mary Bosworth writes: “Although designed for use instead of detention, there is little evidence that ATDs actually reduce the reliance on confinement. Instead, in part because of their lower costs, as well as their relatively uncontested nature, alternatives to detention potentially expand the administration of border control. Electronic monitoring offers a clear example: it is relatively inexpensive and easy to use, with a wide range of people. As such it can be, and is, deployed against people who were previously not subject to methods of control.”
“Expansion of Detention”
The proposed regulation also introduces three new grounds for detention (if an individual poses a security risk, in order to determine or verify their identity or nationality, or due to their failure to comply with alternative measures), includes an extensive list of reasons to determine an individual’s risk of absconding (including homelessness), fails to protect children and other vulnerable groups from detention, and extends the maximum length of detention from 18 months (6 + 12) to 24 months (12 + 12)–while also providing for indefinite detention in certain cases, such as detention on the grounds of threat to safety and security.
Challenging these changes, the UN experts note that these would significantly increase the risk of detention being systematically applied in the EU, reinforce stereotypes associating migration with security threats, and–in the case of the possibility of indefinite detention–risk detention becoming arbitrary: “Indefinite detention amounts to arbitrary detention and violates the right to liberty under article 9 of the ICCPR. As the WGAD recommended, a maximum detention period should be set by legislation.”
Further, they highlight the fact that the proposal’s failure to protect vulnerable groups–like children–from detention violates key international human rights standards. As the joint general comment No.4/23 of the Committee on Migrant Workers and Committee on the Rights of the Child affirms: “The detention of any child because of their or their parents’ migration status constitutes a child rights violation and contravenes the principle of the best interests of the child. … Any kind of child immigration detention should be forbidden by law and such prohibition should be fully implemented in practice.”
“Return Hubs”
A much-discussed aspect of the proposed Return Regulation is its establishment of a legal basis in EU law to conduct third country returns via “return hubs.” Article 17 permits Member States to transfer persons with a return decision to any third country on the basis of an “agreement or arrangement” with that third country–even when there is no link between the individual and that country. The UN experts write that they “are concerned that such ‘return hubs’ agreements or arrangements are not conditional upon prior human rights impact assessment and independent oversight. Further, the proposal does not provide for individual assessment of protection needs prior to the transfer.”
As the Global Detention Project highlighted in a submission to the UN Special Rapporteur on the human rights of migrants in 2025, efforts to externalise migration management and enforcement– such as through the use of “return hubs” and third country agreements–are leading to serious rights violations across the globe, often disappearing people without due process. “In many cases, agreements–seemingly concluded with minimal or no legal safeguards or oversight–facilitate the transfer of migrants to countries with minimal reception infrastructure and weak legal protections. Commonly, detention has featured at the centre of these arrangements, with deportees subjected to arbitrary and abusive detention with inadequate access to basic rights–as well as, in some cases, forced removal and refoulement.”
The UN Special Rapporteur has also previously highlighted the human rights concerns associated with externalisation schemes, concluding in a 2025 report: “In order to ensure that States uphold their obligations under the human rights treaties, the Special Rapporteur calls upon States to end arrangements that prevent arrival, outsource asylum processing or allow for readmission or expulsion to countries different from the country of nationality, which effectively shift responsibility for migrants and refugees to third States and, in practice, lead to violations of their human rights.”
Further Reading
Council of the European Union, “General Approach,” December 2025
