January 25

Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union

Madalina Moraru, Galina Cornelisse, Philippe De Bruycker (Eds.)

review by

Petra Jeney

With less than a month separating it from the publication of the European Commission’s New Pact on Migration and Asylum, ‘Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union’, edited by Madalina Moraru, Galina Cornelisse, and Philippe De Bruycker (Hart Publishing 2020, £90 hardback, also available as e-book) offers a timely and exceptionally thorough look at the judicial complexities involved in giving effect to the EU Return Policy.

In its New Pact, the European Commission attempts the near impossible, namely to give fresh impetus to EU Asylum and Migration policy by breathing new life into the ten or so proposals that have been stuck in the EU legislative maze since 2016 and crying out for overarching policy principles and political compromise. Yet in the New Pact one again reads the familiar apprehensions regarding the unsatisfactory enforcement of return decisions, the still existing loopholes in EU Member States’ legislation in connecting their respective asylum regimes to return procedures, the limited use of assisted voluntary return and the pressing need to adopt the recast Return Directive. The backdrop of the Commission’s renewed ambition to move EU Asylum and Migration policy forward makes ‘Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union’ an especially sobering read.

The volume is organised around the three major pillars of the Return Directive; termination of illegal stay, pre-trial detention and procedural safeguards. The specific methodology of the volume is to present how these topics have been tirelessly interpreted, refined and applied in the course of what it frames as a ‘judicial dialogue’ spanning over a decade since the Directive was adopted.

To underpin this approach, the authors offer a wealth of information and analysis of how these topics have been perceived by the courts, both at the national and the supranational levels. The volume, however, moves well beyond simply reflecting on the vertical judicial dialogue taking place between the national courts and the Court of Justice of the European Union in the context of the preliminary reference procedures. To be sure this particular aspect, and especially the CJEU’s formative impact in elevating protection standards of the Return Directive, has already been well documented and indeed praised. The main novelty of the book lies in the plentiful examples and case studies it offers regarding how courts within a Member State, through a horizontal judicial dialogue, work out how specific EU concepts and CJEU interpretation of the Return Directive can be best accommodated in their national judicial practices through the application of national immigration law.

The third dimension of this dialogue discussed in the volume is the transnational judicial dialogue, which captures  how national courts from different jurisdictions, and also supranational courts, chief among them the Court of Justice of the European Union and the European Court of Human Rights, engage with each other’s case law. The editors of the volume made sure that this contribution goes much further than a jurisdiction by jurisdiction description of how the Directive is received by the respective national courts. The cross references, the contextualised discussion of the themes, the rich representation of case law all work together to give the reader a compelling account of the three dimensional judicial dialogues taking place in the context of the Return Directive. The sweeping look at the dialogues reveals both climaxes (courts’ position is strengthened vis-à-vis administrative authorities) and low points (slow introduction of the principle of gradualism and prioritising of voluntary return). In this regard, the true hallmark of the entire volume is the extensive underlying research made in the framework of the REDIAL Return Directive Dialogue project, carried out between 2014-2016. The thorough exploration of this project provides a very strong empirical underpinning for the key arguments made throughout the volume.

‘Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union’ stands out as an ever relevant reminder that behind the programmatic notion to make returns more effective lies the reality of myriad national administrative and judicial procedures that give effect to the objectives and purposes of the Return Directive and actually make return procedures happen. In the elaborate process of making the Return Directive work, it is not return rates that drive immigration authorities and courts but rather legality, procedural safeguards and fundamental rights protection. One can only hope that out of the many messages of the volume at least this point is realised by policy makers and those hammering out compromise solutions of the recast Return Directive that even now are under discussion.

Given its extremely insightful, thorough and documented analyses, the volume will certainly become an indispensable point of reference for anyone following European migration policies and will secure a deserved and long-lasting place on bookshelves. It is especially for this reason that one wonders why a table of cases could not have been attached, to make it truly a manual at your fingertips.


Petra Jeney  is a Senior Lecturer at the European Institute of Public Administration and an Associate Professor at Eötvös Loránd University, Budapest.


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