The Problem of Non-Return. Member States’ Non-Return Policies, Deservingness Logics, and the Future of EU Migration Governance under Pressure

The European Union faces persistent structural limits in its capacity to enforce return decisions. Despite political pressure for stricter enforcement, only a minority of individuals who receive a return order are effectively removed, leaving hundreds of thousands in protracted situations of non-return. As Noll showed, the problem of return necessarily exposes—and is constrained by—what I term the problem of non-return: states must determine not only how to enforce departure, but also how people who cannot be removed should be treated, what rights they retain under human rights law, and which societal consequences follow from granting or restricting those rights. This paper examines how four EU member states—Italy, the Netherlands, Germany, and Poland—construct and manage this “problem of non-return,” drawing on recent findings from the Horizon Europe FAiR project. Building on Beyond the Deportation Regime (2020), I conceptualize the four cases as exemplars of distinct post-arrival enforcement regimes: thin (Italy), thick (Netherlands), targeted (Germany), and hampered (Poland). All confront the same reality of large-scale non-deportability, yet respond through different mixes of coercive, toleration-based, and regularisation-related measures. To explain these differences, the paper integrates the CARIN deservingness framework (control, attitude, reciprocity, identity, need) to show how national constructions of migrant (un)deservingness shape both the normative justification and practical design of non-return policies. Italy and Germany emphasise reciprocity and attitude (economic contribution, behavioural compliance); the Netherlands foregrounds control and need (tight bureaucratic oversight and narrowly defined humanitarian relief); Poland privileges identity, filtering humanitarian permits through national and religious framings of belonging. The analysis reconstructs the full spectrum of non-return responses in each country—from highly exclusionary practices such as repeated detention without viable prospect of removal, camp-like accommodation, benefit withdrawal, and de facto abandonment, to more inclusionary arrangements such as hardship procedures, track-switch mechanisms (e.g. Ausbildungsduldung), humanitarian permits, and targeted regularisations. This spectrum highlights the underlying dilemmas identified by Noll: tensions between enforcement and human rights, the proportionality limits of control-based solutions, and the societal implications of both rights expansion (e.g. labour-market competition, “pull factor” fears) and rights restriction (e.g. marginalisation, exploitation, crime). These comparative findings contribute to debates about the future of European integration and the EU’s ability to maintain legitimacy under rising enforcement-oriented politics. I argue that legitimacy in return governance ultimately requires normalising, regulating, and human-rights-proofing the structural reality of non-return. Yet a core tension persists: while member states require flexibility to reflect domestic political cultures and deservingness norms, the EU also needs minimum standards and explicit recognition of non-return as a permanent governance field. The paper concludes by outlining how a European approach to non-return could reduce institutional strain, curb harmful practices, and strengthen the EU’s credibility in an era of geopolitical uncertainty and contestation of liberal norms.