EU Return Directive: From Administrative Discretion to Rule of Law and Compliance with Individual Human Rights [In Japanese]
Summary In September 2022, the latest issue of the Review of European Law, edited by Professor Yumiko Nakanishi, was published and included an article on the EU Return Directive written by GGR Visiting Researsher Ikuko Sato. This article examines the issue of whether the EU Return Directive fills the legal ambiguity regarding the removal of third-country nationals who illegally settle in European countries, and whether the Directive brings about a shift from administrative discretion to the rule of law and humane removal. This article first explains the background and scope of the EU Return Directive, and then analyzes the interpretation of the Directive and humane return procedures on the legal basis of the EU Charter and the ECHR, with reference to the case law of the CJEU and the ECtHR. Such case law has clarified provisions that were unclear when the Directive was first adopted, acting as judicial review, and has led to appropriate administrative measures and progress in humane return, by setting forth procedural obligations regarding such as pre-removal detention. However, the professor indicates that, with regard to the non-refoulment principle, the Directive still lacks clarity, including its relationship to humanitarian grounds.