- 28.
It is well known that implementing returns
to certain countries of origin or transit is
arduous due to difficulties in the co-operation
with authorities in these countries in relation to
identification, issuance of travel documentation
etc. Accordingly it would be useful to develop best
practices for return to specific regions or
countries of origin and transit. This should
include contact information in Member States as
well as in the third country in question, methods
of identification of nationals from that
country/countries, methods of obtaining travel
documents and the practicalities of the physical
return (means of transport, procedures on arrival,
escorts during return). Such information should
also be made available in a future web-based
network.
29.
For this purpose a number of specific
countries or regions should be identified for which
best practices need to be developed. The identification
of such countries should take place on the basis of
discussions between practitioners as well as on the
basis of the criteria laid down in the Council
conclusions of April 2002 on criteria for the
identification of third countries with which new
readmission agreements need to be negotiated. In this
context it should be noted that the ongoing work in the
High Level Working Group on Asylum and Migration relates to co-operation between the
Community and third countries whereas the present
identification of target countries solely aims at
improving practical co-operation between Member States
with regard to return.
f.
Joint training
30. Return
enforcement is a very difficult and demanding task,
which calls for various skills for the responsible
persons such as proper knowledge of the legal
competencies, adequate treatment of returnees, the
management of incidents, intercultural understanding
and negotiation techniques.
31.
Based on the experiences gained from the
establishment of a common core curriculum for border
guard training as foreseen in the Council's Plan for
the management of the external borders, Member States
should consider establishing a similar common core
curriculum for training of officials with
responsibility for return. A common core curriculum on
return training could cover subjects such as the use of
common standards on restraints in general. The content of such a core curriculum on return
should be focused on practical issues and minimum
standards that are to be developed within this
programme.
32. Priority
at this stage should be given to joint seminars or
regular meetings between persons responsible for the
development of national training schemes regarding
return related matters. The selection of subjects for
such seminars, e.g. subjects of common interest, which
are not based on needs due to national legislation,
should take place during the regular meetings to be
held between return practitioners as mentioned above in
section 23. Member States could also at this stage
offer training courses to officials of other Member
States in their training facilities.
g.
Mutual assistance by immigration liaison
officers
33. The issue
must be raised whether immigration liaison officers
(ILO’s) in countries of origin or transit may
also be used in relation to returns as well, among
other things with a view to facilitating contact with
the authorities of the countries in question.
34. The
Presidency has initiated a project on liaison officers
with the aim to improve the co-operation on border
management and illegal migration. A number of selected
embassies and consulates of the Member States have
responded to a questionnaire on the tasks and ideas for
improved co-operation between existing ILO’s. On
the background of the answers received a report has
been drafted, including an evaluation of the
possibilities of improved co-operation in the field of
migration i.a. the current and future level of
co-operation between the Member States' Immigration
Liaison Officers in third countries.
35. ILO’s,
in countries of origin or transit, have regular contact
with the border guard and immigration authorities. It
should therefore be evaluated whether such working
relations could be made available for return related
tasks. In this regard the resources and capacities of
the various liaison officers should be taken into
account.
h. Joint
Return Operations
36.
Removing illegal residents using charter
flights usually proves expensive for Member States. Member
States could therefore enforce returns more efficiently
by organising joint operations where relevant in order
to share existing capacities on charter flights.
Provided that adequate transit arrangements are
established, Member States should on a voluntary basis
seek to carry out joint charter flights for returns.
Joint charter flights have already been organised as
pilot projects on a bi- or trilateral basis among
Member States or other destination countries. The
development of this practice would not only have
financial advantages, but the signal sent would be
stronger as well.
37. In this context a project proposed by
France on a centre for rationalising repatriation
operations has been approved in the framework of the
Council. The aim of
the centre is to facilitate joint operations, including
establishing a protocol laying down the procedures and
the practical aspects of such flight operations.
38.
An exchange of information on the request
and capacities of Member States with regard to joint
operations should immediately start taking place on an
ad hoc basis. Also a future secure web-based network
could in the longer run contain a tool, which allows an
online co-ordination on joint operations. Thus
interested Member States could easily express their
interest in joining each others operations.
39.
A website, however cannot replace
personal interaction, which is clearly needed to reach
an advanced level of co-operation. Therefore the
meetings to be held among return practitioners, cf.
above section 23, should be the immediate appropriate
forum to enhance co-operation and co-ordination on
joint operations. In this regard
consideration could also be given to the technical
support facility advocated by the Commission in the
recent Communication on the Common Policy on illegal
immigration
and the Communication on a Community Return policy on
illegal residents.
V. Common minimum standards
or guidelines on return
- A
comprehensive Community return policy should be
gradually developed by identifying measures that
can be implemented immediately. These measures
focus on practical steps for operational
co-operation, including the adoption of certain
minimum standards, which can be identified with
the aim to facilitate the operational return of
third country nationals. In addition, at this
stage it is useful to consider a number of other
guidelines and minimum standards for
implementation in the short, medium or long term
based on an evaluation of the experience gained
from operational co-operation. The establishment
of common minimum standards or guidelines on
return should be considered in the context of the
Community efforts to create a European migration
and asylum policy.
a.
Removal
41.
Member States’ return and removal
procedures are already, and should of course continue
to be, conducted in accordance with human rights
standards and international obligations. With the aim to improve operational
co-operation on return common standards for
escorts will prove valuable to facilitate joint flight
operations and transit through Member States. Also
there is a need to establish certain common minimum
standards regarding rules on security and restraints.
In this context the experiences made from the French
centre on rationalising repatriation operations, cf.
point 37 will be valuable. Also the Commission has
offered to invite experts from Member States to a
meeting with the aim of exchanging information on
existing legislation and practices regarding security
rules. As far as removals by air are concerned the
IATA/CAWG Guidelines on Deportation and Escort as well
as national rules/guidelines already in force could
provide the basis for developing EU provisions on
escorting and the use of restraints.
42. Experience
from an improved operational co-operation should be
used to assess whether removal, as the closing act of
enforcing return, should be subject to further common
minimum standards, safeguarding both the rights and the
health of the person concerned as well as the
effectiveness of the removal.
43. Without
prejudice to legal instruments in the field of asylum guidelines or minimum
standards could also be considered with regard to the
assessment of whether removals to certain third
countries are feasible or not. This would serve to
streamline Member States’ present return practice
in relation to specific countries of origin in case the
actual situation makes removals questionable due to
compelling humanitarian reasons. This could include
consultation of organisations such as UNHCR or UN
Administrations (e.g. UNMIK in Kosovo) or other
relevant actors.
44. There
are already international instruments requiring that
detention must be in accordance with the basic human
rights in place. Consideration should, however, be
given to whether certain minimum standards for
detention pending removal or during transit are needed
in order to facilitate operational co-operation between
Member States.
45. In
establishing binding minimum standards on detention a
certain degree of flexibility must, however, be ensured
in order to leave Member States the ability of
exercising their own discretion with the purpose of
facilitating safe and dignified returns.
b.
Readmission rules among Member States
- In 1999 Finland presented an initiative
with a view to adopting a Council Regulation
determining obligations as between the Member
States for the readmission of third-country
nationals.
The discussion was suspended due to the
negotiations on the transfer of the mechanism for
the determination of the responsibility for asylum
claims into Community law, Dublin II. The introduction of a
parallel general framework for readmission among
Member States concerning illegal residents should
be considered. However, it should be ensured that
common rules on readmission between Member States
contains an “added value” for the
Member States compared to the bilateral
arrangements already in force. Also readmission
rules between Member States should not prevent
Member States from returning illegal residents to
their country of origin or to another third
country.
c. Transit arrangements
- 47.
According to both the Comprehensive Plan to
combat illegal immigration and trafficking of
human beings and the Councils plan for the
management of the external borders agreement
should be reached between Member States on mutual
support and assistance in enforcing repatriation
and readmission measures during transit (by air,
sea and land).
48.
It is often necessary to use airports of
other Member States due to a lack of direct flight
connections to the country of return. In such cases it
is important to establish a clear legal framework for
the transit procedure, e.g. the use and competencies
of escorts in transit and regulations on failure to
return. To that end Germany intends to launch an
initiative for a Council Directive on assistance in
cases of transit for the purpose of removal by air. This
initiative should be pursued rapidly with the aim of
improving the existing co-operation between Member
States.
49.
In addition, it is necessary to find
pragmatic solutions for returnees crossing internal
borders of Member States, in particular in cases of
voluntary return. This problem is particularly
relevant when the returnee is a national of a country,
which is under visa obligation, and would, therefore,
need a visa to transit through the territory of other
Member States. In such a case, the use of a secure
standard travel document issued by the Member State
returning the person – which would be recognised
by all Member States – could be envisaged to
make return as “unbureaucratic” as
possible.
d. Preconditions
for expulsion decisions
50. Until now decisions on expulsion are
taken at Member States level according to national
law. However, the Council have already provided for
initial standards for expulsion decisions in Directive
2001/40/EC on the mutual recognition of decisions on
the expulsion of third-country nationals. This
Directive provides for initial standards for
preconditions for expulsion decisions in two
categories of cases, inter alia, that a third-country
national is the subject of an expulsion decision in
case of a serious and actual threat to public order or
to national security. The experience gained from the
implementation of these initial standards provided for
in the Directive should create the foundation for
further considerations on harmonisation in this field.
51.
A starting point for a further
development of the idea of mutual recognition of
expulsion decisions could be the distinction between
reasons for expulsion decisions on the grounds of
serious and actual threat to public order or to national
security and other legitimate reasons, which would
normally lead to an expulsion decision in Member
States. This distinction should take proper account of
the conditions and safeguards that have to be
fulfilled in order to end the legal residence of
certain groups.
52. The
expulsion of refugees as well as other persons under
other forms of international protection requires
special attention, for they can only be removed in
accordance with international obligations such as the
1951 Geneva Convention or the European Convention on
Human Rights. In general, a decision for expulsion
should in all cases be based on the individual
situation. The human rights of the person concerned
and whether the measure is proportionate must be
adequately considered. A judicial remedy should be
available.
e. Mutual
recognition of return decisions
53. Within
an area of freedom, security and justice where inner
border control does not exist, the efficient return of
illegal residents who have absconded after receiving
an expulsion decision issued by one Member State and
who have been apprehended in another Member State, is
of major importance. In this regard an expulsion
decision issued by one Member State should as far as
possible and in accordance with national legislation
be enforced in another Member State without the latter
having to issue a new expulsion decision. The Council
has already taken a first step towards the mutual
recognition of decisions on the expulsion of
third-country nationals, cf. Directive 2001/40/EC. The
Directive provides for a system for the mutual
recognition of administrative decisions on expulsion,
while leaving to the Member States a certain
discretion in deciding whether or not to apply its
rules. In this regard it is of special importance
to implement Article 7 of the Directive concerning
financial arrangements, which will be subject to a
specific Commission proposal.
54. The
implementation of the already adopted Directive
2001/40/EC will provide Member States with the
necessary experience to consider possible amendments
or changes of the directive.
f. Proof
of exit and re-entry
55.
With the aim of encouraging returnees
to choose to return voluntarily, consideration could
be given to the legal consequences of the voluntary or
forced return on an application for a subsequent
re-entry. Common
definitions regarding the circumstances under which a
new application for a visa or a residence permit
should be excluded could thus be established, e.g.
possible restrictions regarding applications for a
visa or a residence permit in cases of forced return.
The Schengen-information system or the future Visa
Information System could be used for this purpose.
VI. Country specific programmes
56. The
aim of country specific programmes should be to ensure
effective and timely return. Furthermore the question
of creating sustainable solutions as a means to tackle
root causes for illegal immigration, i. a. reasonable
assistance to returnees and assistance to capacity
building in countries of origin, should be considered.
57. Country
specific programmes should only be adopted, when there
is a clear need. The countries in question could be
selected on the basis of the criteria contained in the
Council conclusions on the identification of third
countries with which new readmission agreements need
to be negotiated adopted by the Council on 25 - 26
April 2002. Country
specific programmes could e.g. cover return to
countries, where the conditions have hitherto made
return impossible, but were these conditions have now
improved considerably. In the framework of the
establishment of country specific return programmes
the situation of transit third-countries should also
be appropriately taken into account.
58. Country
specific programmes should be tailored to the country
in question and should accordingly take into account
the specific situation in the country, including its
needs, as well as the caseload.
59. The
Afghanistan return programme is the
first country specific return programme to be adopted
by the Council. The programme contains several components,
which could be deemed relevant for other future
country specific return programmes.
60. The
experience gained from the Afghanistan return
programme shall of course be used in the planning of
similar future country specific return programmes.
VII. Financial assistance
- The
question of costs is important to the success of
any return programme. So far the Joint Actions of
1997 and 1999 (Budget lines B7-6008 and B-5-803),
the European Refugee Fund (ERF) and the budget
line for activities of the High Level Working
Group on Asylum and Immigration (HLWG) (B7-667)
have been used for return related issues. The
Seville Conclusions require the Commission to
report to the Council on the financial resources
available at Community level inter alia for
repatriation of immigrants and rejected asylum
seekers, cf. Conclusion 38. The
Commission’s report on the budgetary
aspects, is expected to be presented to the
Council in late November 2002. On the basis of
the Commission report it could be considered
establishing a financial instrument to cover
return related expenses in order to effectively
meet the requirements of the European Council in
Seville in the field of return.
62. The
scope of financial assistance to Member States for
return related measures could cover both voluntary and
forced return. Furthermore it should be considered if
return related financial assistance could also be
given to transit countries with the aim of preventing
persons from transiting through these countries.
63. Concerning
voluntary return, financial, assistance could cover
costs incurred in the process of returning and
reintegrating both illegal residents and legal
residents, whereas financing with regard to forced
return of illegal residents could cover a number of
enforcement measures.
VIII.
Intensified co-operation with third countries
64. As
stated in the Seville Conclusions, an intensified
co-operation with third countries to tackle the root
causes of illegal immigration is vital to the success
of the European Union's efforts to combat illegal
immigration and must therefore remain a constant
long-term objective. Furthermore any future
co-operation, association or equivalent agreement,
which the European Union or the European Community
concludes with any country should include a clause on
joint management of migration flows and on compulsory
readmission in the event of illegal immigration.
65. In
the field of asylum and immigration, the co-operation
with third countries falls under the competence of the
High Level Working Group on Asylum and Immigration
(HLWG). Following the Seville Conclusions the HLWG has
been charged with presenting draft conclusions on the
systematic assessment of relations to selected third
countries with a view to intensify co-operation on the
management of migration flows to be adopted by the
Council in November 2002.
66. The
Commission will submit by November 2002 a report on the
effectiveness of the financial resources available at
Community level for asylum and migration projects in
third countries, including technical and financial
assistance to enhance their co-operation capabilities
in particular in order to conclude readmission
agreements.
67.
Furthermore, considerable emphasis must
be added on the conclusion of readmission agreements
covering own nationals as well as third country
nationals and stateless persons. Depending on the
Commission's assessment of the state of play of
negotiations on readmission agreements, the Council
must take appropriate action with regard to relevant
third countries. In this respect it is also important
for the European Union to consider the use of all
appropriate instruments available in the context of
the Union's external relations to further negotiations
with third countries without jeopardizing the fundamental
legal position, that the readmission of own nationals
is a non-negotiable obligation incumbent on any state.
68. Concerning
the conclusion of readmission agreements with third
countries, the following developments should be noted:
The decision to authorise the signing of a readmission agreement
with SAR Hong Kong has been adopted by the Council on
23 September 2002. A readmission agreement with
Sri-Lanka has been initialled in May 2002. Further the
readmission agreement with SAR Macao has
been initialled
on 18 October 2002, whereas negotiations with Morocco,
Pakistan, Russia and Ukraine are to be continued. New
negotiation mandates concerning Albania, Algeria,
Turkey and China has been presented by the Commission
with a view to their adoption by the Council. Further
readmission agreements with relevant third countries
can of course be concluded as need be. Where
appropriate, Member States can assist the Commission
during the negotiation process, in
accordance with the EC Treaty.
69. Finally,
the conclusion of transit and admission arrangements
with other third countries than the countries of
origin must be considered, as direct returns are not
always feasible. Transit provisions should therefore
be systematically included in Community readmission
agreements. If no such agreements are in force or under
negotiation, separate transit agreements should be
concluded, where appropriate. Also co-operation with
other countries of destination outside the EU on
transit regimes should be established where necessary.
ANNEX
1 –Definitions
|
Term
|
Definition
|
|
Return
|
Comprises
the process of going back to one’s country of
origin, transit or another third country, including
preparation and implementation. The return may be
voluntary or enforced.
|
|
Illegal resident
|
Any person who does
not, or no longer, fulfill the conditions for
presence in, or residence on the territory of the
Member State of the European Union.
|
|
Illegal
entrant
|
Any
person who does not fulfil the conditions for entry
in the territory of the Member States of the European
Union.
|
|
Voluntary
return
|
The
assisted or independent departure to the country of
origin, transit or another third country based on the
will of the returnee.
|
|
Forced return
|
The compulsory return to the country of
origin, transit or another third country, on the
basis of an administrative or judicial act.
|
|
Readmission
|
Act
by a state accepting the re-entry of an individual
(own nationals, third-country nationals or stateless
persons), who has been found illegally entering to,
being present in or residing in another state.
|
|
Readmission
agreement
|
Agreement
setting out reciprocal obligations on the contracting
parties, as well as detailed administrative and
operational procedures, to facilitate the return and
transit of persons who do not, or no longer fulfil
the conditions of entry to, presence in or residence
in the requesting state.
|
|
Expulsion
|
Administrative
or judicial act, which states – where
applicable – the illegality of the entry, stay
or residence or terminates the legality of a previous
lawful residence e.g. in case of criminal offences.
|
|
Expulsion
order
|
Administrative
or judicial decision to lay the legal basis for the
expulsion.
|
|
Detention
pending removal
|
Act
of enforcement, deprivation of personal liberty for
return enforcement purposes within a closed facility.
|
|
Detention
order
|
Administrative
or judicial decision which forms the legal basis for
the detention pending removal
|
|
Removal
|
Act of enforcement, which
means the physical transportation out of the country.
|
|
Removal
order
|
Administrative
or judicial decision to lay the legal basis for the
removal (in some legal systems synonymous with
expulsion order).
|
|
Legal
re-entry
|
Admission
of a third-country national or stateless person to
the territory of the Member State of the European
Union after prior departure.
|
|
Rejection
|
Refusal
of entry to a state
|
|
Transit
|
Passage
through a country while travelling from a country of
departure to the country of destination.
|
ANNEX
2
|
LIST OF MEASURES AND ACTIONS TO BE ADOPTED
AND CARRIED OUT IN THE FIELD OF RETURN
|
|
Area
|
Measures
|
Work done
|
Work still to be done
|
(Indicative timetable)
|
|
Operational co-operation
|
Assessment of exchange
of statistics
|
Council conclusions
from May 2001 on statistics.
|
Drafting by the
Commission of annual reports on statistics, cf.
Council conclusions from May 2001.
On the background of this annual report
assessment of what other figures on return may be
collected and compared
|
Short term
Short term
|
|
|
Network of national
contact points
|
List of contact points
on return distributed October 2002
|
Inclusion of existing
contact information in a future secure web-based
network
|
Short term
|
|
Meetings among Member
States’ return practitioners at operational
level
|
Examination of this
issue by SCIFA in November 2002
|
First meeting within
the appropriate Council body as soon as possible in
2003
|
Short term
|
|
Handbook of best
practices (e.g. on identification and documentation
of third country nationals) + best practices for
return to specific regions or countries
|
Catalogue of best
practices on removal/readmission 28/2/02.
Council conclusions on
obtaining travel documents 28/2/02 (questionnaire)
|
- Creating a handbook
of best practices on obtaining travel documents,
- Consideration on
creating a handbook of best practises in general
- Consideration on
creating best practices on regions and/or countries
|
Short term
Medium term
Medium term
|
|
Joint training of
return enforcement officials
|
On 22/7/02 approval by
SCIFA+ of project on a common core curriculum for
border management
|
- Joint
seminars/courses,
- In the light of the
SCIFA+ project on a common core curriculum evaluation
of the need to establish a similar project on return
training.
|
Short term
Medium term
|
|
Enhance co- operation
among Immigration Liaison Officers (ILO)
|
On going work in SCIFA+
on creation of network on liaison officers
|
Evaluation of common
guidelines to be established on cooperation between
ILOs within SCIFA+
|
Short term
|
|
|
Joint return operations
|
Bilateral co-operation.
French Centre on
rationalisation of return operations approved by
SCIFA+ on 16/9/02 – first meeting held on 24/9
2002
|
Drafting of a protocol
to advance joint operations
|
Short term
|
|
Common minimum standards
|
Set up minimum
standards on return procedures
|
|
- Considering minimum
standards for return procedures in accordance with
proposal by the Commission, including certain minimum
standards on detention pending removal.
- Common security
standards regarding return operations,
- Common standards for
escorts.
|
Medium term
Medium term
Short term
|
|
|
Readmission obligations
between Member States
|
First reading of a
Finnish proposal for a Council Directive (1999) on
readmission obligations between Member States
|
Consideration of a
general framework on readmission between Member
States
|
Medium term
|
|
|
Improvement of
possibilities for transit
|
Study of a German initiative for a Council
Directive (2002) on assistance in the case of transit
by air.
|
-Adoption of German initiative for a Directive on
transit by air,
-Establish the legal
framework for land transit.
|
Short term
Medium term
|
|
|
Minimum standards on
expulsion decisions
|
Directive 2001/40/EC on
the mutual recognition of decisions on expulsion
|
Implementation of
Directive 2001/40/EC entering into force on 2/12/02.
|
Short term
|
|
|
Legal framework for the
mutual recognition of return decisions
|
Directive 2001/40/EC on
the mutual recognition of decisions on expulsion
|
Commission proposal on
the arrangements of expenses,
Implementation of
Directive 2001/40/EC entering into force on 2/12/02.
|
Short term
Short term
|
|
Country specific return programmes
|
Elements for integrated
Community return programmes
|
|
Adoption of Afghanistan
Return Programme on 28/11/02.
Consideration of target countries with
regard to further return programmes.
|
Short term
Short and Medium term
|
|
Intensification of co-operation with
third-countries
|
Enhance co-operation
with third countries
|
Bilateral cooperation
|
HLWG conclusions on
co-operation with third countries to be adopted on
18/11/ 2002
|
Short and Medium term
|
|
Include transit
provisions in any Community readmission agreements,
or if no readmission agreement has been concluded
enter into transit arrangements
|
The Commission is
currently negotiating a number of agreements
including transit arrangements.
|
Inclusion of transit
provisions in future readmission agreements or conclusion
of transit arrangements
|
Short and Medium term
|
|
|
Community Readmission
agreements
|
Negotiation
mandates for readmission agreements with Hong Kong,
Pakistan, Russia, Morocco, Macao, Sri Lanka and
Ukraine adopted
Readmission
agreements with Hong Kong, Macao and Sri Lanka
initialled.
Commission
proposals for new mandates for readmission agreements
with Albania, Algeria, China and Turkey
|
Council
discussion on incentives for third countries to enter
into readmission agreements
Consideration
of new readmission mandates with additional third
countries
|
Short term/Medium term
|
