Introduction: Towards a Return Regulation
On 11 March 2025, the European Commission published a proposal for a Return Regulation (PRR) intended to repeal the current Return Directive. This reform is the last missing piece of the renewed comprehensive approach to managing migration. The need to recast the Directive stems from the low return rate, around 20%, underscoring the overall ineffectiveness of the current return system. A first attempt to reform the return framework was made in 2018, but negotiations stalled before they reached the stage of trialogue discussions. However, the Commission believes that the adoption of a Regulation will remedy the need for streamlining returns and ensuring common procedural rules. Still, it will challenge the political will to reach the necessary consensus for its adoption.
In the Staff Working Document (16 June 2025), the Commission identified common challenges that prevent Member States from enforcing return procedures promptly, including the complexity and fragmentation of the return process, and insufficient cooperation from third-country authorities. Among them, the difficulties in ensuring the presence of third-country nationals (TCNs) throughout the procedure and preventing the risk of absconding represent significant challenges for the framework of return. They led to an increase in administrative workload and uncertainties and challenges in planning, identification, and return operations. To address this situation, the Proposal establishes objective criteria to assess this risk in Article 30 and obligations upon the returnees under Chapter III.
In the “Explanatory Memorandum” introducing the Proposal, the Commission noted that the new elements are designed based on research findings on the gaps and needs of EU law in this area. Thus, it claims they close the long-identified gaps. Yet, the researchers distanced themselves from how (and whether) their work contributed to the Proposal. This is also the case for the alternatives to detention (ATD). At first glance, the Proposal expressly regulates them in Article 31, providing a comprehensive list of possible options, which is a new development compared to the Return Directive. However, this blog post argues that the new measures under the Article lack essential elements to be considered ADT, as they can be adopted in the absence of legal grounds for detention. Thus, it claims they are systematic migration control measures rather than less coercive measures to be adopted instead of pre-removal detention. This trend reflects a shift toward coercive measures within the PRR framework to ensure TCN’s availability. New coercive measures are about to be introduced, framed as “obligations to cooperate” and “consequences for non-cooperation”, which include regular reporting or residence at a specific address. The effectiveness aimed at is achieved not through rights-based measures, but by restricting the returnees’ liberty.
Alternatives to Detention Measures under the Current Return Directive
To understand whether the measures under Article 31 PRR offer genuine alternatives, it is necessary first to clarify the notion and application of ATD under the current legal framework. This section presents the relevant legal principles and academic debates to assess whether the proposal represents a step forward or a distortion of existing safeguards.
The current Return Directive does not explicitly mention ADT, but Article 15(1) implies them by allowing detention “unless other sufficient but less coercive measures can be applied effectively in a specific case…”. In this regard, the Court of Justice of the European Union (CJEU) had ruled in several judgment (see El Dridi, Mahdi, Zh. and O.) that, when one or more legal grounds for detention exist, authorities must first determine if ATDs can adequately fulfil the objectives of detention, namely, avoiding absconding and hampering or hindering the return procedure. The Court highlighted that the preliminary condition to apply ADTs is the presence of legal grounds for detention, not before or after. This approach aligns with the use of detention as a measure of last resort, underpinned by Articles 6 and 52 of the Charter of Fundamental Rights of the European Union, and it enforces the principle of proportionality, a mandatory principle that applies throughout the whole return procedure.
Despite the absence of a binding definition, ATDs are generally understood as “non-custodial measures that entail a level of coerciveness of a lower degree than detention”. Academics differentiate ATDs from “alternative forms of detention” and “alternatives to liberty”, based on the degree of liberty restriction imposed and its intensity in practice. This means that measures labelled as ADTs may result in the deprivation of liberty even without confinement in terms of detention, as in the case of house arrest. Meanwhile, alternatives to liberty refer to the scenario in which returnees are already detained and may be released if certain conditions are met, such as in the case of a release on bail. This conceptual distinction is crucial to evaluate whether measures under Article 31 RPP serve as safeguards against excessive coercion.
Alternatives under Article 31 PRR
Given the unregulated ATD framework of the Return Directive, the Proposal aims to provide more clarity and streamline the use of and alternatives to detention. In particular, Recital 32 PRR stresses that “other less coercive alternative measures to detention should be used when they can be applied effectively…”. Article 31 PRR outlines that ATD shall be “ordered taking into account the individual circumstances of the third-country national concerned […] and be proportionate to the level of the risk of absconding assessed”. Then, the Article lists five alternative measures – more than in the 2018 Commission proposal:
a. Obligation to regularly report to competent authorities
b. Obligation to surrender identity or travel documents
c. Obligation to reside in a designated place
d. Deposit of financial guarantee
c. electronic monitoring
On the one hand, it is welcome that the Article refers to a closed number of alternatives, as the Return Directive does not specify any, leading to different practices among Member States. On the other hand, a closer reading reveals the Regulation does not clearly state an obligation on the Member States to transpose all five measures. The provision states that “Member States shall provide for any of the following measures”. This degree of optionality conflicts with theGuidelines on Alternatives to Detention provided by the European Union Agency for Asylum, which recommends that national law should outline at least two different alternative measures. Will it be enough to uniform practices?
Moreover, the deposit of financial guarantees and the electronic monitoring have faced strong criticisms. The former may undermine the principle of non-discrimination, as the applicability of ATD must not depend on the individual’s ability to pay for it. Some Member States have already implemented a case-by-case flexible approach, for example, in Italy, it is between € 2,500 and € 5,000. Although the high thresholds render them ineffective alternatives, undermining their potential application. Instead, the electronic monitoring may constitute an alternative form of detention due to its particular harshness and intrusiveness, along with potential stigma and data protection concerns the tracking data gathered.
ATD without Legal Constitutive Elements
Crucially, there is no indication or reference to the fact that ATD shall be applied when the grounds for detention are met, neither under Article 31 nor Article 29 PRR. In contrast, Article 32(2) PRR states that when detention conditions are no longer fulfilled, the detention measure shall cease, but the “alternative measures” under Article 31 can continue to be applied “to prevent the risk of absconding”. It follows that what Article 31 PRR labelled as “alternatives to detention” are not such, as they can be ordered in the absence of legal grounds for detention.
Furthermore, it is not clear how long the alleged “alternatives” can be applied under the conditions of Article 32(2) PRR. According to Article 32(4) PRR, these measures can be applied beyond the maximum detention period. Without a temporal limit, they become alternative forms of detention to be used when the maximum detention period is reached, but the removal has not been carried out. This would be an instrumentalization of the safeguards of the right to liberty. This situation does not provide any safeguards for the unremovable migrants, namely those subjected to return orders, but the Member State failed to perform the removal in practice. Thus, the measures outlined in Article 31 PRR appear not to function as less coercive measures to apply instead of detention, but rather as extensions of detention to prevent absconding.
Coercive Measures for Different Purposes: Legal Overlap and Uncertainty
The Proposal introduces two new articles affecting returnees’ freedom, enshrining the obligation to cooperate (Article 21) and to remain available during the return process (Article 23). Both apply indiscriminately to all returnees solely because they are subjected to a return procedure.
Firstly, under Article 23(1) PRR three mandatory measures are outlined to ensure the returnees’ presence in the territory. Among them, a closer look reveals that the obligation to report regularly to the authorities and residing at a specific address are framed both as measure to ensure the availability of TCNs (Article 23(1) l. b) and as alternative to detention (Article 31 l. c). Bearing in mind that the applicability of ATDs is not confined to the presence of legal grounds for detentions, a key question arises: will there be any operative difference between 23 PRR and 31 PRR in practice?
Whereas the “obligation to cooperate” comprises twelve mandatory measures. Among these, letter a) requires returnees to remain in the territory of the Member State responsible for the return procedure. Letters g) and h) require notification of residence and any changes. Once again, the distinction between the obligation to notify the residence and any changes to it labelled as “obligation to cooperate,” and the obligation to reside in a particular place as ADT, is unclear. This difference may not even exist in practice when the designated place to reside is the place of residence.
In addition, as object of the obligation to cooperate (Article 21), returnees have to “remain available in accordance with Article 23”. Consequently, when the obligations under Article 23 are not respected, Article 22, named “Consequences in Case of Non-compliance with the Obligation to Cooperate”, applies. In such a scenario, the first consequence listed is the “refusal or reduction of certain benefits and allowances granted under Member State law to the third-country nationals concerned”. Here, the question is whether ADTs would still apply in situations of non-compliance, even if the individual circumstances demand so, or whether they will become carrots and sticks tools.
As illustrated, the same obligation -such as residing at a given place- can be found in Articles 21, 22 and 23. Here lies a significant legal ambiguity, which raises concerns of foreseeability, legal certainty, and proportionality. For instance, could breaching this obligation lead to sanctions under Article 22, presuming a risk of absconding, or shifting from alternatives to detention? The Regulation lacks guidance on how to navigate these overlaps. To enhance legal clarity, a hierarchy of measures should be established, clearly linking the application of ATD to detention grounds and limiting the use of obligations under Articles 21 and 23 to circumstances where liberty is not at stake.
All these measures impact liberty by restricting it to specific areas, justified as instruments to ensure an effective removal. While the national law of 10 Member State already lists “non-cooperation” as an additional ground for pre-removal detention, resulting in the corresponding obligation on returnees to cooperate, no data confirm an improvement in their return rate. However, the Commission valued as a merit that similar practices were implemented. This dynamic blurs the line between criminal and administrative intent and can be addressed from the perspective of criminology’s preventive theories of punishment. Nonetheless, it is consistent with the strategy of the New Pact, which emphasises a preventive approach.
The main issue is that the measures enshrined in the obligation to cooperate (Article 21) and those to ensure the availability for the return process (Article 23) apply indiscriminately. The essential safeguards of the right to liberty, which include the necessity of individual assessments and compliance with the principle of proportionality, are at stake here. The former ensures that the measure is strictly used to achieve the objective of the Regulation, while the latter demands ordering the measure that restricts less the right to liberty. In the absence of these safeguards, the measures appear indiscriminate and disproportionate.
The Loss of Opportunity to Design Legally Binding Rights-Based Alternatives
The coercive measures proposed by the Commission acquire new nuances and overlap with the alleged “alternatives to detention” under Article 31 of the PRR. In this regard, the Proposal missed the declared intent “to increase the use of efficient alternatives to detention”. As illustrated, Article 31 fails to deliver on the promise of ATD Rather than reducing coercive practices, the Article institutionalises them, resulting in expanded control over third-country nationals without enhancing procedural guarantees.
The Proposal missed a crucial opportunity to enhance alternatives by valuing a rights-based approach. Evidence from pilot projects have shown that case management improves the compliance and cooperation of third-country nationals without impacting their right to liberty. Given that the New Pact strengthens the link between arrivals and returns, integrating it could have played a crucial role in facilitating returns and alleviating the administrative burden.
Moreover, although Section 5 of the Proposal is dedicated to the return of the minors, detention is not ruled out, neither for unaccompanied minors, despite the European Court of Human Rights (ECtHR) judgment. Moreover, Article 31 PRR does not list specifically designed ATD for them as family-based care. This omissions are compelling, as ECtHR has stressed that “the protection of child’s best interests involves both keeping family together and considering alternatives so that the detention of minors is only a measure of last resort”. Data on Member States practice shows that only a few of them have ATD designed for family, despite their recognition as good practice in the return procedure.
Conclusion: Between Compliance and Coercion
This blog post illustrates how the proposal undervalues the role of ATD. Under the current Return Directive, ATD primary measures for ensuring removal, while detention is a last resort – at least, according to the CJEU’s words. However, in the PRR, ATD are measures in addition to detention. As currently drafted, Article 31 introduces a structure of obligations that can persist regardless the legal basis for detention. The result is that in reality, some of these alleged alternatives might actually be so restrictive on people’s freedom to be qualified as alternative forms of detention. This political choice reflects a broader trend toward coercive measures within the Proposal. Unless amended, these provisions risk serving as little more than a symbolic gesture toward liberty, while embedding administrative coercion as a norm—disregarding the fundamental principle of proportionality. To uphold the Union’s legal and moral values, the Proposal must be amended to re-centre the framework on the protection of the right to liberty.
Vittoria Patergnani is a Research and Project Assistant at the Université Libre de Bruxelles. She holds a five-year degree in Law, with a thesis on ‘Pre-removal detention of irregular migrants and the alternatives to it under EU law: a critical analysis of the Member States’ laws and practices.
