Recasting the Return Directive: a critical case study

Return(s), both as a topic and policy priority, is at the heart of the negotiations on the 2020 New Pact on Asylum and Migration. The 2008 Return Directive is seen as providing relatively high standards on human rights protections for Third Country Nationals (TCNs) residing in the EU, even though the Directive itself is quite controversial in some quarters. The 2018 Recast of this Directive has been stalling for years – and the re-emergence of the Recast in the 2020 Pact legislative agenda must certainly be viewed in light of the weak return effectiveness rate (32%), but is adapting legislation really the right tool in the box for this? This paper looks at this case critical to reforming the Common European Asylum System (CEAS) and Schengen from a ‘Failing Forward’ (FF) theoretical perspective. Given recent criticism of this theoretical lens, the paper seeks to unpack FF in order to shed light on the legislative inertia accompanying the launch of the Recast. In addition, this paper argues that with an unpacked FF on substance and process of EU (non-)competence, non-linear development of the EU as a polity can be better understood. Recent developments in CEAS and environs – such as the much-maligned EU-Turkey and EU-Tunisia deals and the reported Frontex human rights violations – show that while integration might be ongoing on some aspects, there are also aspects in which stagnation, decline or breakdown can be detected. Member State calls for codification of their Schengen breakdown rebordering efforts also illustrate the possibility that ‘ever closer union’ is not a given automatism. This is also reflected in other policy fields, such as the ongoing ‘Rule of Law’ crisis. This paper then tests a framework for refocussing our attention to which Europe emerges and why (Lavenex, 2018).