13 EU Return Policy
| (35922)
8415/14
COM(14) 199
| Commission Communication on EU Return Policy
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| Legal base
Document originated
Deposited in Parliament
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28 March 2014
1 April 2014
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| Department | Home Office
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| Basis of consideration | EM of 10 April 2014
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
13.1 A Directive adopted in 2008 ("the EU Return Directive")
establishes a set of common standards and procedures for the return
or removal of third country nationals[57]
who do not have a right to enter or stay in the territory of an
EU Member State. According to the Commission:
"The return of third country nationals without legal
grounds to stay in the EU or a need to be granted protection is
essential to the credibility of EU legal migration and asylum
policy."[58]
13.2 The UK did not opt into the EU Return Directive and is not
bound by its provisions, but does participate, on a case-by-case
basis, in other EU instruments which are intended to help Member
States tackle irregular migration. These include certain EU Readmission
Agreements with third (non-EU) countries, EU funds to support
the return and reintegration of third country nationals, and policy
initiatives developed within the framework of the EU's Global
Approach to Migration and Mobility which promote enhanced cooperation
and dialogue with non-EU countries of origin and transit. The
UK also participates in joint return operations coordinated by
FRONTEX (the European Agency for the Management of Operational
Cooperation at the External Borders).
The Commission Communication
13.3 The Communication considers the evolution and impact of EU
return policy in recent years, provides an assessment of Member
States' application of the EU Return Directive (which they had
to transpose into their national laws by the end of 2010), and
identifies areas for future EU action.
THE EVOLUTION AND IMPACT OF EU RETURN POLICY
13.4 The Communication suggests that a number of factors —
including economic conditions in and beyond the EU, as well as
more effective external border controls — may have contributed
to the cumulative annual reduction in the number of irregular
migrants apprehended within the EU since 2008. There remains,
however, a significant gap between the number of return decisions
issued and returns actually effected — fewer than half of
those issued with a return decision during the period 2010-13
left the EU. Amongst the factors delaying or preventing return
are lack of cooperation by non-EU countries of origin or transit
in providing the necessary documentation, as well as by migrants
who resist their return by concealing their identity or absconding.
13.5 The EU Return Directive is intended to ensure that the legal
framework for the return of third country nationals without legal
grounds to remain in the EU is based on fair and transparent procedures
that respect fundamental rights and the dignity of those being
returned or removed. It is supported by two "flanking"
instruments: the Visa Information System (VIS) which helps Member
States to establish the identity of third country nationals for
the purpose of return, and the Schengen Information System (SIS)
which contains Schengen-wide entry bans issued under the EU Return
Directive.
13.6 Consistent with the EU's policy of promoting voluntary departure
rather than forced removal, the Communication notes that the International
Organisation for Migration is currently operating more than 70
Assisted Voluntary Return programmes in 26 EU Member States.
FRONTEX data indicate, however, that the volume of forced removals
continues to exceed voluntary departures by a ratio of 44 to 56.
An increasing number of joint return operations involving several
Member States are being coordinated by FRONTEX and are governed
by its Code of Conduct for joint returns. Around half of joint
return operations coordinated by FRONTEX are subject to monitoring
by an independent observer. In addition, the creation of an independent
Fundamental Rights Officer within FRONTEX in 2012 is intended
to ensure that all FRONTEX activities comply with fundamental
rights.
AREAS FOR FUTURE EU ACTION
13.7 The Communication identifies five areas in which the Commission
proposes further action. The first concerns the effective implementation
of the EU Return Directive by EU Member States (excluding the
UK and Ireland) and by Iceland, Norway, Switzerland and Liechtenstein
who participate as "Schengen associates". The Commission's
assessment of its application by Member States reveals a number
of shortcomings, particularly in relation to provisions on detention,
the introduction of an independent forced return monitoring system
at national level, and access to effective legal remedies. Whilst
undertaking to continue monitoring Member States' compliance with
the Directive and to address any deficiencies, the Commission
nevertheless suggests that the Directive has led to convergence
amongst Member States on five key policy objectives:
· respect
for fundamental rights;
· fair
and efficient return procedures;
· a
reduction in the number of cases in which migrants lack a clear
legal status;
· a
preference for voluntary departure over forced return; and
· a
focus on reintegration (in countries of origin) and on developing
alternatives to detention pending removal.
13.8 The second area of action is intended to promote
more consistent return practices which respect fundamental rights
by the following means:
· the
publication of a "Return Handbook" containing common
guidelines and best practice on return-related activities, incorporating
operational guidance by the EU Fundamental Rights Agency on apprehending
irregular third country migrants as well as recent Court of Justice
case law on the use of criminal sanctions for returnees;
· a
study by the European Migration Network on alternatives to detention;
· the
collection of best practice on the status and treatment of individuals
who cannot be removed; and
· support
for calls for a Council of Europe initiative to codify a set of
detailed immigration detention rules reflecting existing international
and regional human rights standards.
13.9 The third area of action concerns dialogue and
cooperation with third countries of origin and transit to improve
their capacity to manage migration flows, provide international
protection to those in need, develop their asylum and reception
capacities, safeguard vulnerable migrants, and re-integrate returnees.
The Commission underlines the need for cooperation and capacity
building on return, readmission and reintegration to form part
of a balanced package that also encompasses trade and labour mobility.
It highlights two recommendations in its 2011 evaluation of EU
readmission agreements which it intends to pursue: the inclusion
of an Article in each agreement giving preference to (and facilitating,
through the provision of the necessary papers) voluntary return;
and the launch of a pilot project to extend the forced return
monitoring system under the EU Return Directive to "post-return"
monitoring of the situation of individuals after their return.[59]
13.10 More effective practical and operational cooperation
between Member States on returns is the fourth area of action
proposed in the Communication. The Commission advocates:
· improved
cooperation on voluntary return amongst Member States (through
the European Migration Network) and with third countries (whilst
taking care to ensure that any incentives for voluntary departure
do not operate as a 'pull' effect);
· stronger
operational cooperation within the EU and with third countries
on processes for the return and reintegration of unaccompanied
minors, and on the identification and issuing of travel documents;
· greater
consistency in the collection of statistical data on returns,
including voluntary departures;
· the
exchange of best practice between national bodies responsible
for monitoring forced returns;
· consideration
of the potential of VIS and SIS to support EU return policy, including
the introduction of an obligation to enter a 'refusal of entry'
alert in SIS II once entry bans have been issued under the EU
Return Directive; and
· the
completion of a European Migration Network study on 'Good practices
in the return and reintegration of irregular migrants: Member
States' entry bans, policy and use of readmission agreements'.
13.11 The fifth area of action focuses on the role
of FRONTEX in coordinating joint return operations. The Commission
invites FRONTEX to amend its Code of Conduct to require independent
monitoring of each joint return operation it coordinates on behalf
of Member States and says that the standards it applies to ensure
humane and dignified treatment of returnees should be "exemplary".
It also asks FRONTEX to make available training on returns which
focuses specifically on safeguarding the fundamental rights of
individuals during the return process.
The Government's position
13.12 The Minister for Immigration and Security (James
Brokenshire) notes that the areas for further action identified
in the Communication do not include any new legislative initiatives,
are "high level", and would not impose any binding obligations
on the UK. He continues:
"Many of the proposals, such as promoting
operational co-operation and developing dialogue with third countries,
are in line with our existing approach. We are actively engaged
with other EU Member States in sharing best practice on returns.
"Specific proposals on third country engagement
include the consistent inclusion of return policy in the implementation
of the Global Approach to Migration and Mobility (GAMM), which
is the EU's overarching external migration policy framework.
Also included are the careful use of incentives, the importance
of capacity building in third countries (including in the areas
of return, readmission and international protection) and follow-up
to the previously identified challenges regarding EU Readmission
Agreements (EURAs). These are in line with the agreed JHA Council
Conclusions on the GAMM and its implementation, although greater
care is required with regard to the use of Schengen visa offers,
which can impact negatively on the UK as well as the full Schengen
Member States."[60]
13.13 The Minister welcomes efforts to tackle problems
affecting the negotiation and implementation of EU Readmission
Agreements, whilst making clear that the Government will only
participate in new Agreements which it considers to be in the
national interest.
13.14 The Minister identifies three "points
of concern" arising from the areas for further action proposed
by the Commission:
"Firstly, the section on consistent and
fundamental rights compatible practices includes a commitment
to produce a Handbook on Return. Along with many other Member
States, our view is that practical co-operation is more effective
and that Commission Handbooks are often more focused on the rights
of the individual rather than the action which States can take
to tackle abuse.
"It is proposed that the Handbook includes
recommendations from a 2012 Fundamental Rights Agency study on
apprehension practices. This said that illegal migrants should
never be arrested in or near hospitals, schools or places of worship.
While we would normally avoid planning operations for these locations,
it may be necessary in individual cases. We would also resist
a bar on requiring schools and hospitals to share data for immigration/return
purposes. Many other Member States share these concerns."[61]
13.15 The second concern arises from the Commission's
proposal to pilot a post-return monitoring mechanism. The Minister
says that the UK and other Member States have consistently opposed
such a mechanism and adds:
"Human rights are already carefully considered
in a separate part of the returns decision-making process. If
an individual faced a real risk of ill treatment on return, they
would not be sent back, and monitoring the treatment of people
whom we consider not to be at risk would be both impractical and
inappropriate. If specific allegations are made that any returnee
has experienced ill-treatment on return, these would of course
be followed up."[62]
13.16 The third concern relates to the Commission's
request to FRONTEX to amend its Code of Conduct governing joint
return operations so as to require the presence of independent
monitors for every operation coordinated by FRONTEX. The Minister
continues:
"If adopted, monitoring bodies would have
the power to delay or prevent returns flights by withdrawing their
teams at the last minute. However, we strive to have an independent
monitor on all charter flights and these are also subject to independent
inspection by HM Inspectorate of Prisons. We support the plan
to encourage sharing of best practice between enforced return
monitoring bodies."[63]
13.17 In addition to these concerns, the Minister
notes that the Commission intends to collect best practice on
the handling of "non-removable" returnees. He adds:
"Like other Member States, we would resist
any recommendation which would provide an incentive to thwart
the removal process, although we do recognise genuine obstacles
to return. However, a collection of best practice may be useful
to Member States."[64]
13.18 The Minister notes that the Communication makes
no clear recommendations on documentation and enforcing returns,
even though it recognises that lack of cooperation from third
countries and resistance by individuals to removal remain a significant
challenge. He suggests that the sharing of operational best practice
in these areas might be beneficial.
13.19 The Minister expects the Council to agree Conclusions
based on the Communication, but these are unlikely to be considered
before the forthcoming European Parliament elections in May.
Conclusion
13.20 We note that the UK is in a different position
from most other Member States in that it is not bound by the EU
Return Directive. The UK does, however, participate in joint
return operations coordinated by FRONTEX and would, we assume,
be affected by some of the actions proposed in the Communication.
We note the Minister's reservations about the proposed publication
of a "Return Handbook" and ask whether these stem from
a concern that it would apply not only to returns effected under
the EU Return Directive, but also to returns effected by the UK
through joint operations coordinated by FRONTEX or on a purely
bilateral basis.
13.21 We would welcome some indication of the
value the Government attaches to UK participation in joint return
operations coordinated by FRONTEX, including the number of joint
operations in which the UK has participated and the proportion
of third country migrants who have been returned to their countries
of origin or transit by these means. We note the Minister's concern
that changes to the FRONTEX Code of Conduct on joint return operations
to include a requirement for independent monitoring of each operation
might cause delay or prevent return flights. We ask him whether
practice to date, either in relation to joint return operations
coordinated by FRONTEX or on charter flights from the UK which
include independent monitors, substantiate his concern.
13.22 The Minister makes clear that the UK and
other Member States oppose the Commission's proposal to pilot
a "post-return" monitoring mechanism. We note that
this proposal dates back to an earlier Commission Communication
which recommended launching a pilot project in a country (Pakistan
or Ukraine were mentioned) with which the EU already has a Readmission
Agreement in order to monitor the treatment of those readmitted
under the Agreement. We ask the Minister whether any pilot projects
have been launched so far and, if so, what effect they have had
in safeguarding the human rights of returnees. Pending the Minister's
reply, the Communication remains under scrutiny.
57 "Third country national" means any person
who is not an EU citizen and/or who does not enjoy free movement
rights under EU law. Back
58
See p.2 of the Communication. Back
59
See (32544) 7044/11: HC 428-xxvii (2010-12), chapter 16 (18 May
2011); HC 428-xxiv (2010-12), chapter 4 (27 April 2011) and HC
428-xxi (2010-11), chapter 5 (23 March 2011). Back
60
See paras 10-11 of the Minister's Explanatory Memorandum Back
61
See paras 13-14 of the Minister's Explanatory Memorandum. Back
62
See para 15 of the Minister's Explanatory Memorandum. Back
63
See para 16 of the Minister's Explanatory Memorandum. Back
64
See para 17 of the Minister's Explanatory Memorandum. Back
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