Explanatory Memorandum to COM(2005)391 - Common standards and procedures in Member States for returning illegally staying third-country nationals - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)391 - Common standards and procedures in Member States for returning illegally staying third-country nationals. |
|---|---|
| source | COM(2005)391  |
| date | 01-09-2005 |
In its Communication of 15 November 2001 on a Common Policy on Illegal Immigration the Commission pointed out that return policy is an integral and crucial part of the fight against illegal immigration. Return policy needs to be based on three elements: common principles, common standards and common measures. The Green Paper on a Community Return Policy of 10 April 2002 elaborated in more detail on the issue of return as an integral part of a comprehensive Community Immigration and Asylum Policy. It highlighted the need for approximation and improved co-operation on return among Member States and put on the table a number of possible elements for a future legislative proposal on common standards in order to trigger a broad debate among relevant stakeholders.
The ensuing Commission Communication on a Community Return Policy on Illegal Residents of 14 October 2002 took into account the results of this public consultation process and sketched a concrete programme for further action, putting particular emphasis on a holistic approach. It made clear that “…for Community action for return to be fully effective, it must fit smoothly into a genuine management of migration issues, requiring crystal-clear consolidation of legal immigration channels and of the situation of legal immigrants, an effective and generous asylum system based on rapid procedures offering access to true protection for those needing it and enhanced dialogue with third countries which will increasingly be invited to be partners in dealing with migration.” Based on this Communication, the Council adopted its Return Action Programme of 28 November 2002 in which it called for improved operational co-operation among Member States, intensified co-operation with third countries and the establishment of common standards with the aim of facilitating operational return.
Finally “The Hague Programme”, adopted by the 4/5 November 2004 Brussels European Council, resumed this issue and expressly asked for the establishment of common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity. It called for the submission of a Commission proposal in early 2005.
The objective of this proposal is to respond to this call and to provide for clear, transparent and fair common rules concerning return, removal, use of coercive measures, temporary custody and re-entry, which take into full account the respect for human rights and fundamental freedoms of the persons concerned.
Co-operation among Member States is likely to be successful if it is based on a common understanding on key issues. Consequently common standards should be set in order to facilitate the work of the authorities involved and to allow enhanced co-operation among Member States. In the long term such standards will provide the ground for adequate and similar treatment of illegally staying third-country nationals, regardless of the Member State which carries out the return procedure.
- Existing provisions in the area of the proposal
Manifold legislative and non-legislative measures have been adopted as a concrete follow-up of the November 2002 Action Plan on Return i. In the context of cooperation in the field of return, Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air and Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals represent first important legal milestones.
Directive 2001/40/EC on mutual recognition of decisions on the expulsion of third-country nationals in combination with Council Decision 2004/191/EC setting out the criteria and practical arrangements for the compensation of the financial imbalances provides for a legal frame for mutual recognition of expulsion decisions.
Regarding the financial dimension of return, the Commission has proposed the establishment of a European Return Fund for the period 2008-2013 as part of the general programme: “Solidarity and Management of Migration Flows” - COM(2005) 123, 6.4.2005. Preparatory actions for 2005-2007 will help phase in this planned financial instrument.
The 2002 Green Paper on a Community Return Policy - COM(2002) 175 - triggered a broad discussion process, including a public hearing attended by over 200 people at which some thirty experts spoke. The hearing provided all relevant stakeholders with an opportunity to express their views and opinions on the issues covered by the present proposal. On the basis of the ideas set out in the Green Paper, the present practices of return policies and options for a future common EU policy on the return of illegally staying third-country nationals were discussed. The hearing allowed an open exchange of views between representatives of the European institutions, Member States, candidate countries, countries of origin and transit of illegal migratory movements, other countries of destination, international organisations, regional and municipal authorities, non-governmental organisations and academic institutions. The written contributions made in this consultation process were made publicly available through the internet.
In addition, in the second half of 2004, Member States experts active in the field of return were consulted on a preliminary draft of a Directive on return procedures.
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Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- 2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- 12. Addressing situations where a third-country national who is the subject of a removal order or return decision issued by a Member State is apprehended in the territory of another Member State
- 4 ) ADDITIONAL INFORMATION
- Chapter I
- Chapter II
- Chapter III
- Chapter IV
- Chapter V
- Summary of the proposed action
An effective return policy is a necessary component of a well managed and credible policy on migration. Clear, transparent and fair rules have to be agreed which take into account this need, whilst respecting the human rights and fundamental freedoms of the person concerned. The present proposal seeks to achieve these aims as follows:
1. Establishing a rule that illegal stay should be ended through a fair and transparent procedure.
2. Promoting the principle of voluntary return by establishing a general rule that a 'period for departure' should normally be granted.
3. Establishing – as a general principle – a harmonised two-step procedure: involving a return decision as a first step and – if necessary – the issuing of a removal order as a second step, thus aligning to a certain extent the currently divergent Member States systems.
4. Addressing the situation of persons who are staying illegally but who cannot (as yet) be removed.
5. Providing for a minimum set of procedural safeguards.
6. Limiting the use of coercive measures, binding it to the principle of proportionality and establishing minimum safeguards for the conduct of forced return.
7. Giving a European dimension to the effects of national return measures by establishing a re-entry ban valid throughout the EU.
8. Rewarding good compliance (including an option to withdraw any re-entry ban) and penalising non-compliance (including an option to extend any re-entry ban).
9. Protecting the interests of the state in cases of serious threat to national and public security (including an option to extend any re-entry ban).
10. Limiting the use of temporary custody and binding it to the principle of proportionality.
11. Establishing minimum safeguards for the conduct of temporary custody.
12. Addressing situations where a third-country national who is the subject of a removal order or return decision issued by a Member State is apprehended in the territory of another Member State
Consideration was given to whether the issue of expulsion/removal for reasons of national and public security should be addressed within the context of the present proposal, in particular with respect to the expulsion of presumed terrorists. The proposal does not contain an express provision on this issue for three reasons:
- All EC Directives adopted in the field of asylum and immigration already contain “public order” clauses which allow Member States to withdraw residence permits and to expel third-country nationals who constitute a threat to public policy or public security. The Commission, in its “post-September 11” working document COM(2001) 743 of 5 December 2001 concluded that, “ It appears that a scrupulous application of these clauses is a more appropriate way of enhancing security than to substantially change the different Proposals at stake.”
- It may not always be in the interest of the State to expel a suspected terrorist. It may sometimes be preferable to bring criminal charges against such person or to keep him under surveillance in a Member State rather than to expel him to a third country.
- Even if there was a case for further harmonizing the issue of “expulsion for reasons of public order/security”, such harmonization should not be proposed within the context of a Directive dealing with the ending of illegal stay/return, but rather within the context of the Directives regulating the conditions of entry and stay - and ending - of legal residence/stay.
However, once the legal stay of a third country national has been ended for reasons of public order, this person becomes a third country national staying illegally in the territory of a Member State for the purposes of the present directive and the provisions of this directive will be applied to this person.
- Legal basis
Article 63 i b of the Treaty.
- Fundamental rights
This proposal was made subject of an in-depth scrutiny to make sure that its provisions are fully compatibility with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations derived from the European Convention of Human Rights. As a result, a particular emphasis was put on the provisions dealing with procedural safeguards, family unity, temporary custody and coercive measures.
- Subsidiarity principle
The subsidiarity principle applies as the proposal does not fall under the exclusive competence of the Community. The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reasons:
The objective of this proposal is to provide for common rules on return, removal, the use of coercive measures, temporary custody and re-entry. These common rules, which aim to assure adequate and similar treatment of illegal residents throughout the EU, regardless of the Member State where they are apprehended, can only be agreed at Community level.
Community rules are in particular indispensable for addressing cases in which a third country national who is already subject of a return decision, removal order and/or re-entry ban issued by one Member State, is apprehended in another Member State or tries to enter another Member State.
The “Hague Programme” expressly calls for the submission of this Commission proposal. This request is evidence of Member States’ recognition that they themselves cannot satisfactorily achieve the aim of an effective European return policy and that the EU is in a better position to do so.
- Proportionality principle
The proposal complies with the proportionality principle for the following reasons:
The proposed Directive lays down general principles but leaves it to the Member States to which it is addressed to choose the most appropriate form and methods for giving effect to these principles in their respective national legal systems and general context.
The proposal aims to support effective national removal efforts and to avoid duplication of national efforts. It should thus - once adopted - lead to a reduction of the overall administrative burden of the authorities charged with its application.
- Choice of instruments
Proposed instrument: Directive.
It was necessary to choose a binding legal instrument which can easily be incorporated into the diverging national systems. A regulation would have been too rigid, whilst an act of soft-law (such as a recommendation) would have lacked the necessary binding legal force.
- Participation in the legal instrument
The legal basis for this proposal is to be found in Title IV of the EC Treaty. It constitutes - to the extent that it applies to third country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Convention Implementing the Schengen Agreement - a development of the Schengen acquis which must be proposed and adopted in compliance with the Protocols annexed to the Amsterdam Treaty on the position of the United Kingdom and Ireland and on the position of Denmark and the Protocol integrating the Schengen acquis into the framework of the European Union. In accordance with the respective agreements with Iceland and Norway as well as with Switzerland, it constitutes – to the extent mentioned above – a development of provisions of the Schengen acquis .
- Detailed explanation of the proposal
The following explanations focus on the most critical aspects of the proposal. More detailed comments are attached in the annex.
The starting point for the applicability of the proposed Directive is 'illegal stay'. The proposal aims - as a measure on illegal immigration based on Article 63(3)(b) of the Treaty - to establish a horizontal set of rules, applicable to any illegally staying third-country national, whatever the reason of the illegality of the stay (e.g. expiry of a visa, expiry of a residence permit, revocation or withdrawal of a residence permit, negative final decision on an asylum application, withdrawal of refugee status, illegal entrance) This proposal for a Directive does not address the reasons or procedures for ending legal residence.
The proposal provides for a two-step procedure, leading to the ending of illegal stay. A return decision must be issued to any third-country national staying illegally. Priority must be given to voluntary return. If the third-country national concerned does not return voluntarily, Member States shall execute the obligation to return by means of a removal order. In [advance] consultations, many Member States expressed concern that the two-step procedure could lead to procedural delays. In response to this concern, the proposal expressly clarifies that Member States are free to issue both the return decision and the removal order within one act or decision. The substantive provisions of this chapter, in particular concerning protection against removal and the possibility for voluntary return will have to be respected by Member States, notwithstanding their choice of whether to issue the return decision and removal order as two separate or one joint act or decision.
The proposal provides for the introduction of a 're-entry ban', preventing re-entry into the territory of all the Member States, to accompany removal orders. This 'Europeanisation' of the effects of national return measures is intended to have preventative effects and to foster the credibility of a truly European return policy. The length of the re-entry ban will be determined with due consideration of all relevant circumstances of the individual case. Normally, the ban should not exceed 5 years. Only in cases of serious threat to public policy or public security, may the re-entry ban be issued for a longer period.
The proposal provides for a right to an effective judicial remedy against return decisions and removal orders. The judicial remedy shall either have suspensive effect or comprise the right of the third country national to apply for the suspension of the enforcement of the return decision or removal order in which case the return decision or removal order shall be postponed until it is confirmed or is no longer subject to a remedy which has suspensive effects.
This chapter seeks to limit the use of temporary custody and to bind it to the principle of proportionality. Temporary custody shall only be used if this is necessary to prevent the risk of absconding and if the application of less coercive measures is not sufficient. The reasons for maintaining a person in temporary custody must be regularly reviewed by a judicial authority. Maximum time limits shall ensure that temporary custody cannot be unduly extended. This harmonisation of national rules on temporary custody is also aimed at preventing secondary movements between Member States of illegally staying persons subject to measures under this Directive.
This chapter provides for a flexible set of rules, applicable if a third-country national who is the subject of a removal order or return decision issued in a Member State ("the first Member State") is apprehended in the territory of another Member State ("the second Member State"). Member States may select different options, depending on the circumstances of the particular case.
On the one hand, the second Member State may recognise the return decision or removal order issued by the first Member State. The financial compensation mechanism agreed upon in Decision 2004/191/EC is made applicable to these cases.
Alternatively, a second Member State may ask the first Member State to take back an illegally staying third-country national or decide to launch a new/autonomous return procedure under its national legislation.
Link to the Schengen Information System :
Information sharing with other Member States will be vital for the effective and swift implementation of the provisions contained in this proposal. Member States need to have rapid access to information on return decisions, removal orders and re-entry bans issued by other Member States. This information sharing will take place in accordance with the rules concerning the establishment, operation and use of the Second Generation Schengen Information System (SIS II).