Judicial dialogue in action : making sense of the risk of absconding in the return procedure

Abstract

This chapter analyses the contribution of courts and judicial dialogue to the implementation of the ‘risk of absconding’, which has proved to be one of the most problematic notions introduced by the Return Directive. The meaning of the ‘risk of absconding’ has been surrounded by confusion from the very start of the negotiations on the Return Directive. Initially, the European Commission’s proposal for a Return Directive did not provide a defi nition of this notion. Instead, a definition was introduced in Article 3(7) following a compromise reached between the opposing views of the Commission, Council and Parliament. The compromise defi nition used a very broad phrasing and did not provide for a harmonised list of circumstances that could lead to fi nding a risk of absconding. According to the Return Directive, Member States are required only to provide for objective criteria in national laws. Th e number and content of ‘objective criteria’ is not harmonised at EU level; instead Member States have retained the power to set these circumstances. Th is freedom has been wrongly interpreted as being unrestricted by EU legal guarantees, so much so that certain Member States listed so many and broad circumstances that a risk of absconding would almost always be presumed to exist, thus endangering the eff ective fulfi lment of the Directive’s objectives.