Reforming the EU Return Acquis through “Exceptionalized Pluralism”: From Internal Borders to Offshore Enforcement

Abstract The 2024–2026 reform of the EU return procedure constitutes the most far–reaching transformation of the European return acquis since the adoption of the key instrument governing returns—Directive 2008/115/EC. This Article critically assesses the impact of the reform on the EU return acquis and more generally on the migration regulatory framework. First, it introduces the concept of “exceptionalized pluralism” to describe the defining structural feature of the reform: the multiplication of derogatory return tracks—at external and internal EU borders and extraterritorially—that systematically displace the procedural safeguards constitutionalized by the Court of Justice of the European Union (CJEU), progressively relegating the common return procedure from norm to residual exception. Second, it argues that this architecture raises constitutional concerns on four interconnected fronts: the codification of numerous accelerated border transfer procedures institutionalizing harmonization as the coordination of coercion rather than the harmonization of rights; the European Return Order reproducing the structural accountability gaps of the Dublin system; the systematic expansion of pre-removal detention recalibrating the constitutional relationship between the right to liberty and executive power beyond what Article 6 of the Charter of Fundamental Rights of the EU (CFR) and the CJEU permit; and the formalization of return externalization through “return hubs” raising rule of law and accountability issues. In conclusion, the Article argues that the legitimacy of the emerging European return system will depend not on its operational speed or uniformity, but on whether enforcement harmonization is matched by concrete implementation of Charter-based safeguards. Moreover, it warns that, absent such implementation, “exceptionalized pluralism” will continue to operate as a self-reinforcing regulatory logic, expanding its derogatory tracks and leaving courts to fulfill, under conditions of mounting institutional pressure, a constitutional function that the legislative design has failed to assume.