EU deportations: 'Alternatives' to detention include surveillance and coercion

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EU deportations: ‘Alternatives’ to detention, increased control, surveillance and coercion

Protestors in Hamburg, Germany. Photo: Rasande Tyskar, CC BY-NC 2.0

The new Return Regulation risks even more discrimination, exclusion from services and broad violations, including of privacy and data protection rights

Date

5 November 2026

Authors

Galatea Scotti

Chiara Catelli

Co-publisher

Border Criminologies

Institution

European Union (EU)

Topics

Borders and frontiers

Region

European Union (EU)

Related Legislation

EU Return Regulation

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Protestors in Hamburg, Germany. Photo: Rasande Tyskar, CC BY-NC 2.0

The new Return Regulation risks even more discrimination, exclusion from services and broad violations, including of privacy and data protection rights

Table of contents

A version of this article was originally published on the Border Criminologies blog at the University of Oxford. It is part of a two-part series on the new EU Return Regulation.

The EU migration management framework is increasingly centred on control and securitisation – an approach which goes hand in hand with the growing use of digital technology for immigration enforcement. The recently implemented EU Return Regulation takes this further. New rules expand the powers available to member states to restrict people’s movements, search their homes and belongings, collect biometric data and monitor compliance with return procedures.

The new regulation formally introduces provisions on investigative measures (a new addition to the 2008 directive), restrictions of movement, and alternatives to detention. These measures will effectively extend surveillance and control into people’s everyday lives and communities.

Challenging the neutral-sounding term ‘return’, The Platform for International Cooperation for Undocumented Migrants (PICUM) has dubbed the Return Regulation the “Deportation Regulation” and draws attention to the deeply punitive and coercive nature of the legislation – an approach that we take forward in this blog post.

The ‘Deportation Regulation’ introduces a new framework for “measures to promote returns and alternatives to detention” (included in Chapter IV), which includes:

In the new regulation, these measures are grouped together under the same chapter, which effectively expands the possibility for EU member states to locate and control undocumented migrants subject to return, even where there are no detention grounds.

The new provisions restrict the freedom of movement of people subject to a return decision, to encourage “compliance with the obligations to leave and cooperate” and to prepare “an effective return”. To this end, state authorities can require people to remain within a geographical area, reside at a specific address, and report to competent authorities at specific times. They may also impose “other measures” provided for in national legislation, a framing that remains vague and open to broad interpretations. These measures allow continued control over where people live, where they can go and how frequently they must report to authorities, even when they are not detained.

The regulation links these measures directly to detention. Failure to comply with movement restrictions can itself contribute to a finding of a risk of absconding, which in turn can constitute a ground for detention. These measures can also be imposed on people not complying with the obligation to cooperate, while Article 22 adds further sanctions, including the refusal or reduction of benefits and allowances; exclusion from return and reintegration assistance; refusal or withdrawal of a work permit; extensions of entry bans; criminal sanctions, including imprisonment; financial penalties; and “other measures”.

The provision on investigative measures (under Article 21) gives member states new powers to carry out raids and other vaguely defined “investigations” at private homes or “other relevant premises”, search and seize personal belongings, and collect biometric data, including fingerprints. These measures can be carried out without the consent of the person concerned and allow for the use of “means of coercion” in cases of non-compliance to obtain biometric data.

These powers raise serious concerns about how immigration enforcement will reach into homes, workplaces and other spaces where people live and seek support. There are justified fears that the measures will lead to more racial profiling – a practice already entrenched within EU border practices. There are also concerns about invasive investigations within the homes/offices of people and organisations suspected of sheltering undocumented migrants.

Healthcare workers and schools could additionally face pressure to cooperate with immigration authorities during investigations. Over 110 organisations have warned that these provisions will trigger policing of public services, thus preventing people from accessing medical care and other important services for fear of persecution and imprisonment.

PICUM and its member organisations have collected extensive evidence on the far-reaching consequences that these practices – already existing in some member states – lead to in everyday life across EU member states.

Under the 2008 Return Directive, member states were required to consider “less coercive measures” as alternatives to detention (ATDs) before applying detention. However, there was no definition of what the less coercive measures might actually look like.

In 2018, the international community and member states within the UN adopted a definition of alternatives to detention in the Global Compact on Migration (Objective 13). The definition stated that these measures should be prioritised over detention, be non-custodial and allow the individual to remain in their community with human rights standards in accordance with international law.

In the new ‘Deportation Regulation’, the definition of ATDs (under Article 23) includes the deposit of a financial guarantee; the use of electronic monitoring; or “other measures” when provided in national law. These measures can be applied to any third country national subject to a return procedure. However, the new rules remove an explicit obligation for states to consider ATDs before deciding to apply detention.

Beyond this, while the regulation sets maximum periods for detention, it does not establish a specific time limit for ATDs. Crucially, Article 30(4) expressly provides that the expiry of the maximum detention period does not prevent member states from applying measures under Articles 20 and 23. This means that reaching the legal limit on detention does not necessarily mean the end of restrictive controls: a person may instead remain subject to movement restrictions, reporting obligations, financial guarantees or electronic monitoring.

By explicitly referring to “electronic monitoring”, the regulation will likely expand existing national practices that embed the use of technology within “alternatives to detention”, such as through the use of GPS tagging and mobile phone surveillance.

The use of surveillance methods and digital technologies as “alternatives to detention” has been highly criticised for extending the harms of detention and hindering migrants’ access to rights and dignity. Digital rights experts have warned that these technologies are highly stigmatising, violate rights to privacy and freedom of movement, and may amount to de facto detention.

Research shows that the use of electronic monitoring engenders feelings of shame and criminalisation and has deeply negative mental health impacts for those subjected to it. Rather than being a genuine “alternative”, it ultimately represents another tool of coercive control that extends into the community, lacks external oversight, and leads to discrimination, exclusion, and broad violations, including of privacy and data protection rights.

Such models show how digital surveillance can become embedded in migration infrastructure, with technologies that monitor movement and access becoming part of the everyday experience of people subject to immigration control.

On 1 October 2026, the Council of the EU took the last institutional step needed for implementation through formal adoption. The regulation will apply in its entirety 12 months after its publication in the Official Journal of the EU. Certain provisions, including those relating to the possibility of developing “return hubs” and agreements with third countries, will apply from the date of publication. However, the majority of the regulation, including articles related to detention and alternatives to detention, will only be applicable from autumn 2027. This means that over the course of the next 12 months, EU member states will prepare for implementation through national legislation and other arrangements.

The regulation will undoubtedly provide member states with a broader set of powers to control, monitor and restrict movements of undocumented people. While the regulation sets a common framework, its implementation will still depend on choices made at the national level. This includes how these powers are used, what safeguards accompany them, and how their use is monitored and challenged. These choices will determine how far the Regulation’s expanded powers reach into people’s lives, and whether international and European human rights standards can limit the harms that the implementation of the Regulation risks causing.

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