THE REVISED HANDBOOK ON RETURNS OF THE EUROPEAN COMMISSION
experience gained by the Ombudsman as a national mechanism of external monitoring,
as has been analysed above, can, if they are solved, have a catalytic role to play in the
effectiveness of returns. This is in contrast to, for example, the increase in administrative
detention, regarding which the Ombudsman in 2017 already posed the question as to
whether it covers weaknesses in the administrative mechanism.34
The revised Handbook did not however constitute a surprise. From 7.3.2017, a Recommendation of the European Commission had preceded it, on the reinforcement of the effectiveness of returns35, regarding which the Ombudsman observed, already in April 201736, that
it creates a new field for the expansion of administrative detention. The Recommendation
foresaw the obligation of the member states to align the potential of administrative detention with the real needs, applying Article 18 of the Directive on Returns for exception based
on emergency circumstances (paragraph 10.c of the Recommendation). Also, it foresaw the
obligation of member states to not exclude the detention of minors when it is strictly necessary for the safeguarding of return, in cases where they are unable to implement effectively
less onerous measures (paragraph 14). The Ombudsman had already mentioned that the
Commissioner for Human Rights of the Council of Europe had expressed his concern for the
expansion of administrative detention in Europe following this Recommendation.37
34 Special report of April 2017, see above note 18, p.61.
35 https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agendamigration/20170302_commission_recommendation_on_making_returns_more_effective_en.pdf
36 see above note 18, p.77
37 http://www.coe.int/en/web/commissioner/-/europe-s-duty-to-avoid-detaining-migrants
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