Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
(a) Commission Communication on a more effective return policy in the European Union—A renewed Action Plan
(b) Commission Recommendation of 07.03.2017 on making returns more effective when implementing Directive 2008/115/EC
(a) —: (b) Article 292 TFEU
(a) (38578), 6943/17 + ADD 1, COM(17) 200; (b) (38592), 6949/17, COM(17) 1600
20.1Fewer than 40% of irregular migrants who were ordered to leave the EU in 2014 actually did so. In its 2015 Communication, A European Agenda on Migration the Commission noted that the implementation of a more effective policy on return was necessary to reduce the incentives for illegal migration and to ensure a “fair, robust and realistic” EU migration policy. The Commission believes that the systematic return of individuals who do not (or no longer) have a right to remain, whether by voluntary means or by compulsion, is essential to maintain public trust in the EU’s asylum system and public support for individuals in need of international protection. It put forward an Action Plan on Return in 2015 consisting of 36 immediate and mid-term measures which were intended to make the EU return system more effective and to “achieve a coherent framework for action, backed by strong operational cooperation between the Member States, EU Agencies and countries of origin of migrants”.
20.2The impact of the Action Plan on Return has been limited. Return rates have not improved and the Commission considers that “more resolute action is needed to bring measurable results in returning irregular migrants”. It has therefore proposed a renewed Action Plan—document (a)—which is intended to give further impetus to the measures set out in the 2015 Action Plan, assist Member States in strengthening their national return systems, improve coordination and operational delivery and “substantially improve” return rates. The renewed Action Plan also seeks to fulfil the mandate given by EU leaders in the Malta Declaration (agreed in February) to make the EU’s migration policy more resilient to future crises, identify potential barriers to return and enhance return capacities while respecting international law. It is accompanied by a non-binding Commission Recommendation—document (b)—which provides guidance to Member States on how to implement more effectively the EU Return Directive, an instrument establishing common standards and procedures for the return of illegally staying third country nationals.
20.3Launching the measures, the EU Commissioner for Migration (Dimitris Avramopoulos) explained:
“We need to give protection to those in need, but we must also return those who have no right to stay in the EU, in full compliance with fundamental rights and the principle of non-refoulement. Ensuring that irregular migrants are returned swiftly will not only take pressure off the asylum systems in Member States and ensure appropriate capacity to protect those who are genuinely in need of protection, it will also be a strong signal against taking dangerous irregular journeys to the EU in the first place. With today’s Action Plan and Recommendation, the Commission is providing support to Member States in their efforts to step up returns, as called for by the EU leaders at the Malta Summit.”
20.4The Commission intends to publish a progress report on the implementation of the renewed EU Action Plan and Recommendation by December 2017.
20.5The Immigration Minister (Mr Robert Goodwill) explains that the UK does not participate in the EU Return Directive but supports its effective implementation by other participating Member States. He shares the Commission’s assessment of the scale of the migration challenge facing the EU and the need to achieve a substantial increase in the rate of returns across the EU. The Government supports the continued implementation of the measures set out in the 2015 Action Plan on Return and broadly endorses the additional measures proposed in the renewed Action Plan. The Minister underlines the UK’s active cooperation with the EU and other international partners in sharing expertise and resources on returns and says the Government “stands ready to contribute further support where this would add value and resources permit”.
20.6Neither of these documents imposes obligations on the UK but both are illustrative of the EU’s efforts to ensure a more coordinated and “pragmatic” approach to returns and to assuage public concern by drawing a clear distinction between the treatment of individuals in need of international protection and economic migrants.
20.7When we cleared the 2015 EU Action Plan on Return from scrutiny in January 2016, we asked the former Immigration Minister (James Brokenshire) to provide further information on “the more radical options on return” put forward by the former Home Secretary (Mrs Theresa May) at the Justice and Home Affairs Council in October 2015 and referred to in her post-Council Written Ministerial Statement. These options included the creation of “multi-purpose centres and safe zones outside of Europe to which economic migrants could be returned”. We ask the Minister whether these options remain on the table and what progress has been made in discussions with other Member States on the possible creation of multi-purpose centres and safe zones outside of Europe, where they should be located and how they should be resourced.
20.8Even though the UK does not participate in the EU Return Directive—the main EU legislative instrument underpinning the renewed Action Plan and Recommendation—the Minister recognises that the way in which the EU responds to the challenge of migration will have an impact on the UK while it remains a member of the EU and, we would add, will continue to do so once the UK leaves the EU. A number of the actions and recommendations build on ideas put forward by the former Home Secretary at the October Justice and Home Affairs Council 2015, in particular the use of accelerated asylum and border procedures in cases likely to be considered inadmissible and the increased use of detention prior to removal. The Commission Recommendation makes clear that detention should remain an option for minors where “strictly necessary” to enforce a return decision and where other less coercive measures would not be effective. The Minister tells us that “the best interests of the child are a primary consideration” and that “treat[ing] children with care and compassion is a priority” but does not comment on the use of detention. We ask him to clarify the Government’s policy.
20.9Pending further information, both documents remain under scrutiny. We draw them to the attention of the Home Affairs Committee.
(a) Commission Communication on a more effective return policy in the European Union—A renewed Action Plan: (38578), + , COM(17) 200 and (b) Commission Recommendation of 07.03.2017 on making returns more effective when implementing Directive 2008/115/EC: (38592), , C(17) 1600.
20.10The Communication is intended to supplement, not replace, the 2015 Action Plan by introducing “additional focused actions” to “substantially improve return rates”. Its purpose is to identify key challenges at each stage of the return process and the necessary financial and operational tools to address them. The main focus is on making national return systems and procedures more effective. The means proposed to achieve this include:
20.11The Commission sets out the progress made in strengthening cooperation with the main third countries of origin on the readmission of their own nationals. It says it will continue to monitor the implementation of existing EU Readmission Agreements, work towards the rapid negotiation and conclusion of new agreements (particularly with Nigeria, Tunisia and Jordan) and improve practical cooperation with third countries. It urges Member States to work with the EU to enhance their “collective leverage” in third countries of origin and transit and secure more effective cooperation on returns and readmission.
20.12The Recommendation is addressed to all Member States participating in the EU Return Directive. Its purpose is to assist them in applying the standards and procedures set out in the Directive “in a more effective and direct way” so as to remove legal and practical obstacles to return whilst also ensuring “a dignified return” and “full respect” for fundamental rights.
20.13The Commission recommends that Member States should:
20.14In his first Explanatory Memorandum on the Commission Communication, the Minister explains that the UK does not participate in the EU Return Directive but nevertheless welcomes the Commission’s intention to monitor its application by other participating Member States and to evaluate its impact on their return processes with a view to proposing further changes if necessary. He also welcomes the revision of the Return Handbook to provide guidance on “areas of flexibility” within the Directive.
20.15The Minister shares the Commission’s assessment of the scale of the migration challenge facing the EU and the likelihood that a large number of migrants within the EU will not be entitled to international protection and will need to be returned to their countries of origin. He supports continued implementation of the measures set out in the 2015 Action Plan of Return and says the UK will continue to contribute its expertise. He adds:
“In the UK’s experience, securing good returns cooperation with third countries requires significant amounts of time and resource. Our view is that progress requires focus, resources and determination from individual Member States, as well as high-level dialogues with countries of origin and transit, to ensure they readmit their nationals.”
20.16The Minister agrees with the Commission that “clearly unfounded asylum applications place a heavy burden on Member States’ asylum systems”. He continues:
“Member States should consider all the possibilities under the existing asylum legislation to address abuse of national asylum systems. Tools such as non-automatic suspensive effect and a national safe country of origin list are important parts of the UK asylum system.”
20.17The Minister expresses concern at the potential administrative burden in providing the volume of data on return decisions requested by the Commission and says the Government is considering whether and how to use the Integrated Return Management Application (IRMA). He agrees that voluntary returns are preferable to forced returns, adding:
“We always look to promote the voluntary departure of those with no right to stay in the UK to enable people to return humanely and with dignity back to their own country. We note that Member States may approach the challenge of encouraging irregular migrants with no right to remain on their territory in different ways and therefore a fully uniform approach may not be feasible.”
20.18The UK participates in the European Reintegration Network (ERIN), a joint return and reintegration programme. The Minister explains:
“Following the inception of the Home Office led Voluntary Returns Service in January 2016, the UK has solely used ERIN to provide reintegration to those who leave the UK via the Assisted Returns programme (formally Assisted Voluntary Returns). ERIN has also provided reintegration to a small number of vulnerable enforced returnees.”
20.19The Minister agrees that a partnership approach is “key to meeting the challenges of the European migrant crisis” and says that the UK works “very closely with EU and other international partners to share expertise and resources on returns issues”. He adds:
“We already provide support to a number of EU states and organisations, through practical cooperation such as joint charter operations, expert advice and sharing of good practice. We stand ready to contribute further support, where this would add value and resources permit.”
20.20The Minister notes that the UK has not opted into the negotiating mandates for EU Readmission Agreements with Belarus, Jordan or Nigeria, but has opted into the negotiating mandate for an agreement with Tunisia. He explains:
“We decide whether to participate in EU Readmission Agreements on a case-by-case basis, depending on the priority we attach to the country concerned in terms of numbers of immigration returns and the degree to which we enjoy a good bilateral relationship with that country.”
20.21In his second Explanatory Memorandum, the Minister notes that the Commission Recommendation concerns the implementation of the EU Return Directive in which the UK does not participate. Whilst the Recommendation therefore has little direct impact on the UK, the Minister nevertheless agrees that Member States should issue return decisions systematically to those with no right to remain on their territory. He notes the specific recommendations on unaccompanied minors and families with children and comments:
“The Government takes its responsibility for the welfare of children seriously and we have very stringent statutory and policy safeguards in place regarding child welfare. Ensuring that we treat children with care and compassion is a priority. The best interests of the child are a primary consideration in every decision taken in respect of the child and we have dedicated asylum decision makers who receive additional training on specific child related issues.”
20.22More generally, the Minister observes:
“We are making it more difficult for people to live and work in the UK illegally. The Immigration Act 2014 introduced measures to stop illegal migrants using public services to which they are not entitled (including medical treatment, bank accounts, mobile phones, rental accommodation, driving licences etc). The Immigration Act 2016 introduced further provisions including new sanctions on illegal workers and rogue employers and new measures to make it easier to enforce immigration laws and remove illegal migrants. These changes in the legal framework are helping to encourage those with no right to be in the UK to return voluntarily.”
None, but see our earlier Reports on the Commission Communication: EU Action Plan on Return—Twentieth Report HC 342-xix (2015–16), (20 January 2016) and Sixth Report HC 342-vi (2015–16), (21 October 2015).
57 See our Second Report HC 342-ii (2015–16), (21 July 2014).
58 See p. 2 of the 2015 Commission , EU Action Plan on Return.
59 See p.2 of the Communication, A renewed Action Plan.
60 See p.13 of the Communication.
61 See the of 3 February 2017 on the external aspects of migration.
62 See the Commission’s of 2 March 2017.
63 See para 32 of the Minister’s Explanatory Memorandum on the Commission Recommendation.
64 See p.2 of the Commission Communication.
65 See the of 12 January 2016 from the then Immigration Minister (James Brokenshire) to the Chair of the European Scrutiny Committee and the former Home Secretary’s of 15 October 2015.
66 See p.3 of the Communication.
67 See pp.4–5 of the Communication.
68 on common standards and procedures in Member States for returning illegally staying third country nationals.
69 See p.14 of the Communication—document (a).
70 See para 37 of the Minister’s Explanatory Memorandum on the Commission Communication.
71 See para 38 of the Minister’s Explanatory Memorandum on the Commission Communication.
72 See para 43 of the Minister’s Explanatory Memorandum on the Commission Communication.
73 See para 43 of the Minister’s Explanatory Memorandum on the Commission Communication.
74 See para 44 of the Minister’s Explanatory Memorandum on the Commission Communication.
75 See para 45 of the Minister’s Explanatory Memorandum on the Commission Communication.
76 See para 36 of the Minister’s Explanatory Memorandum on the Commission Recommendation.
77 See para 33 of the Minister’s Explanatory Memorandum on the Commission Recommendation.
27 April 2017