Explanatory Memorandum to COM(2015)668 - European travel document for the return of illegally staying third-country nationals - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2015)668 - European travel document for the return of illegally staying third-country nationals. |
|---|---|
| source | COM(2015)668  |
| date | 15-12-2015 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
In the European Agenda on Migration 1 , the Commission outlined a set of measures and initiatives that aim at providing structural solutions for better managing migration in all its aspects. The effective return of third country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence in the Member State of the Union is an essential part of a comprehensive approach to ensure the proper functioning of the EU migration policies and for maintaining public trust in the Union migration system.
Increasing the rate of return of irregular migrants frees up capacities for welcoming those genuinely in need of protection, as underpinned by the Union's renewed efforts to protect those in need, including through relocation and resettlement. An effectively implemented and credible return policy goes hand in hand with a more open migration policy.
Yet, the EU system to return irregular migrants is not sufficiently effective. For instance, in 2014, only less than 40% of the total number of return decisions issued by Member States has been enforced. The Commission presented an EU Action Plan on Return 2 on 9 September 2015 in order to address the underlying reasons for this, including ways to increase the acceptance of the standard travel document for the expulsion of third-country nationals.
The lack of valid travel documents issued by the country of destination of the returnee is one of the main obstacles to successful return. At present, Member States may issue a substitute document 3 for those illegally staying third-country nationals who do not possess a valid travel document. Council Recommendation of 30 November 1994 establishes a standard travel document for the expulsion of third-country nationals 4 ; however, its recognition by third countries is low, including because of its unsatisfactory security features and standards.
The need to address this issue was also underlined in the Council conclusions of 8 October 2015, in which Member States committed themselves to using the standard travel document more regularly in return operations. The European Council conclusions of 15 October 2015 further stressed this need.
The objective of this proposal is to establish a dedicated European travel document for the return of third-country nationals subject to a return decision, which provides for a uniform format and enhanced technical and security features to ensure a wider acceptance by third countries and the increased use of such document for the purpose of readmission. Its use should be promoted in EU and bilateral readmission or other agreements.
• Consistency with existing policy provisions in the policy area
This proposal follows up on the announcement of the EU Action Plan on Return to explore ways to increase the recognition of the EU laissez-passer by third countries. The European travel document for return should help achieve the objectives set in the Agenda on Migration to enhance the effectiveness of the EU system to return irregular migrants, notably of those who do not possess valid travel documents, and to increase the return rate, by ensuring that third countries fulfil their international obligation to take back their own nationals residing irregularly in Europe.
The proposal for a European travel document for return complies with and builds upon the provisions of the Return Directive, which set the common standards and procedures for returning illegally staying third-country nationals 5 .
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Article 79(2)(c) TFEU empowers the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, to adopt measures in the area of illegal migration and unauthorised residence, including removal and repatriation of persons residing without authorisation. Hence, this Article is the suitable legal basis for establishing a European travel document for return.
• Variable geometry
With regard to variable geometry, this proposal follows a comparable regime to the Return Directive.
According to Article 4 of Protocol 22 on the position of Denmark annexed to the Treaties, Denmark shall decide, within a period of six months after the Council has decided on this Regulation, whether it will implement this proposal, which builds upon the Schengen acquis, in its national law.
With regard to the United Kingdom and Ireland, the Return Directive presents a hybrid character, as reflected in its recitals (26) and (27). It follows that both Protocol 19 on the Schengen acquis integrated in the framework of the European Union annexed to the Treaties, and Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaties, apply to this proposal. Pursuant to the latter, non-Schengen protocol, the United Kingdom and Ireland are not taking part in the adoption of this Regulation and are not bound by it or subject to its application; they may however notify to the Council that they wish to take part in this instrument.
On the basis of the respective agreements associating those countries with the implementation, application and development of the Schengen acquis, Iceland, Norway, Switzerland and Liechtenstein are to be bound by the Regulation proposed.
• Subsidiarity
The aim of this proposal, to establish a European travel document for the return of third-country nationals with enhanced security features in view of improving the recognition of this document by third countries, cannot be sufficiently achieved by the Member States acting alone. This is because the coexistence of different national travel documents for return, which use different formats, standards and security features, would hamper the recognition of such travel documents in EU readmission agreements with third countries, and would impact negatively on the effective return and readmission of illegally staying third-country nationals. The aim of this proposal can, therefore, be better achieved by the European Union.
• Proportionality
Because the proposed Regulation harmonises the format and technical specifications of a European travel document for return and it does not amend or modify the common standards and rules on return established by the Return Directive, in accordance with the principle of proportionality as set out in Article 5 of the Treaty of the European Union, it does not go beyond what is necessary to achieve its objective.
Furthermore, since relevant and reliable security features have already been set for the uniform form for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form 6 , these features 7 are used for the European travel document for return. This avoids raising additional costs to Member States.
• Choice of the instrument
In order to establish uniform and harmonised features, ensure clarity of concepts and the direct applicability of the European travel document for return, it is appropriate to adopt this act in the form of a Regulation. Where necessary, the Commission should be empowered to adopt the necessary technical adaptions to the format of the European travel document by means of delegated acts.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Because of its non-binding nature, the Council Recommendation of 30 November 1994 concerning the adoption of a standard travel document for the expulsion of third-country nationals was not subject to an evaluation. However, regular discussions with representatives of both Member States and third countries show that the existing instrument is inadequate to ensure the necessary security standards for carrying out return and readmission of illegally staying third-country nationals.
During regular discussions with Member States' experts, no issues have emerged in relation to the security features applicable to the uniform form for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form. It is therefore appropriate to use the same security features for the European travel document for return.
• Stakeholder consultations
Member States' experts were consulted in the context of return and readmission meetings and dialogues. They were also consulted via an ad hoc query of the European Migration Network (EMN) launched on 14 October 2011 8 . This concluded that the standard travel document for the expulsion of third-country nationals is rarely accepted by authorities by third countries, also because of its low security standards.
• Collection and use of expertise
The proposal builds on the views expressed by Member States' national experts, who were consulted during return and readmission meetings and dialogues, as well as through EMN queries, as explained above.
• Impact assessment
Due to the urgency of the action needed to improve the enforcement of return and increase the readmission rate, including of those illegally staying third-country nationals who do not have a valid travel document, no impact assessment was conducted.
• Regulatory fitness and simplification
The European travel document for return would reduce the administrative and bureaucratic burden on Member States' and third countries' administrations, including consular services, and it should contribute to reducing the length of the administrative procedures necessary for ensuring return and readmission of illegally staying third-country nationals.
Moreover, by applying to the European travel document for return the enhanced security features already applicable to the uniform form for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form, no additional administrative and financial costs would be raised to Member States.
• Fundamental rights
This proposal respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the protection in the event of removal, expulsion or extradition provided for in Article 19 of the Charter.
This proposal only defines the format and the technical specifications of the European travel document for the return of illegally staying third-country nationals, therefore it does not have significant consequences on the fundamental rights of third-country nationals.
4. BUDGETARY IMPLICATIONS
The proposal has no impact on the EU budget.
As the proposed European travel document for return is conceived for a single use only, and since it follows the technical specifications and security features already agreed upon in relation to the uniform forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State, the additional costs for Member States in producing and issuing such a document are negligible compared to the status quo.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The usefulness and effectiveness of the European travel document should be assessed in the context of the evaluation of the EU readmission agreements with third countries.
• Detailed explanation of the specific provisions of the proposal
The proposal aims at harmonising the format and technical specifications of the European travel document for the return of illegally staying third-country nationals in order to ensure higher technical and security standards, in particular as regards safeguards against counterfeiting and falsification. It would facilitate recognition of this document by third countries for the purpose of return and readmission, notably in the context of readmission agreements or other arrangements with third countries, as well as in the context of return-related co-operation with third countries not covered by formal agreements.
The European travel document for return would help increase flexibility for the authorities of third countries and reduce the administrative burden on competent consular authorities. In this way, the costs for the European travel document for return would be limited to a minimum. By accelerating the administrative procedures for return, it would contribute to reducing the period during which returnees awaiting removal are kept in administrative detention.
Member States could consider issuing a European travel document for return when a document that is not valid or is no longer valid for travelling, or a certificate, or a copy of these documents, proves the nationality of the illegally staying third-country national subject to a return decision (e.g. expired passport, identity card, third-country laissez passer; military or maritime identity card, driving licence; nationality, birth, marriage or other civil registry certificate; identity information from the Visa Information System). Moreover, Member States could consider issuing the European travel document in the case in which a third-country national, whose nationality has been confirmed by the competent authorities of a third country, has not received a valid travel document within a reasonable deadline.
Article 1: it sets the subject matter of the proposal, to set the format and the technical specifications of the European travel document for return.
Article 2: it provides the definition of key terms.
Article 3: it sets the format, content, language and validity of the European travel document for return, and empowers the Commission to amend the format by means of delegated acts.
Article 4: it defines the technical specifications and security features of the European travel document for return, which are those set by Article 2 of Council Regulation (EC) No 333/2002 and are not public for security reasons.
Article 5: it sets the rules relating to the fees for issuing the European travel document for return, which shall be free of charge for the third-country national.
Article 6: it establishes the rules for the exercise of delegated powers by the Commission, in line with Article 290 TFEU.
Article 7: it establishes that the existing Council Recommendation on a standard travel document for the expulsion of third-country nationals is repealed and replaced.
Article 8: it sets the rules for the entry into force and the geographical application of the Regulation.