EU RETURN POLICY A GENERAL PRESENTATION by Philippe DE BRUYCKER 1 EU RETURN POLICY A GENERAL PRESENTATION by Philippe DE BRUYCKER Brussels University & Odysseus Academic Network

FOUNDATIONS OF THE EU RETURN POLICY Legal basis: article 63 of the Treaty on the European Community (as modified by the Amsterdam Treaty in 1999): « measures on immigration policy within the following areas: illegal immigration and illegal residence, including repatriation of illegal residents ». But return is a field where policy instruments non legally binding are more important than in other fields

THE HAGUE PROGRAMME (2004) The European Council calls for: Minimum standards for return procedures, including minimum standards to support effective national removal efforts (legislation) 2. Closer cooperation and mutual technical assistance and common integrated country and region specific return programmes (coordination) 3. Launching of the preparatory phase of a European Return Fund in view of its establishment for 2007 (financial assistance) The timely conclusion of Community readmission agreements and the prompt appointment of a special Representative for a common readmission policy (external relations)

PRINCIPLES OF THE EU RETURN POLICY Return is a necessity Priority of voluntary return on forced return Return has an internal but also external dimension Coordination between Member States mainly but also EU legislation are necessary

PRINCIPLE 1 RETURN IS A NECESSITY See point 1.6.4. of the Hague programme: « Migrants who do not or no longer have the right to stay legally in the EU must return on a voluntary or, if necessary, compulsory basis. The European Council calls for the establishment of an effective removal and repatriation policy based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity ».

WHY IS RETURN A NECESSITY? For a reason of coherence of the global EU Immigration and Asylum policy But large scale procedures for the regularisation of illegals in Southern EU Member States (considered as an alternative to return in the report of the Global Commission but not by the EU)

Voluntary return is preferable PRINCIPLE 2 Voluntary return is preferable than forced return

but also an external dimension PRINCIPLE 3 Return has an internal but also an external dimension The Hague Programme: « A coherent approach between return policy and all other aspect of the external relations of the Community with third countries is necessary »

EXTERNAL DIMENSION Cooperation of third countries of origin or of transit is necessary to return illegals The Hague programme: « a special emphasis on the problem of nationals of such third countries who are not in the possession of passports or other identity documents (THE problem of the return policy which is very practical)

EXTERNAL DIMENSION Return policy has logically an external dimension The EC tries to conclude readmission agreements with third countries in order to make possible and facilitate return The EU External policy integrates return as a dimension: stick (sanctions? Answer of the Sevilla European Council) or carrot (visa facilitations)? In reality importance of financial assistance to third countries (we convince by paying; see Morocco)

PRINCIPLE 4: Coordination and Legislation Member States prefered to start with coordination rather than legislation But after a certain improvisation, there has been a quick evolution and there is now a legal framework still under construction which has been finally recognised as complementary to the coordination method

COORDINATION Return action programme adopted by the Council of Ministers on 25 November 2002 on the basis of a Communication and after the publication of a green paper by the Commission

CONTENT OF THE ACTION PROGRAMME Measures improving operational co-operation among Member States Country specific programmes Co-operation with third countries Common minimum standards + EU financial assistance to Member States which was added later

MEASURES IMPROVING OPERATIONAL CO-OPERATION AMONG MEMBER STATES The main goal of the programme rather than legislative harmonisation Create added value at European level in order to facilitate return and increase the number of returnees Network of national contact points ICONET website Exchange of best practices (Manual on acquisition of travel documents in 2003; Council conclusions of November 2004 but largely restricted documents) Joint trainings (with assistance of EU border Agency in the future?)

COUNTRY SPECIFIC PROGRAMMES Afghanistan return programme adopted in 2002 by the Council is the first example New impetus given by the Hague programme with common integrated country and region specific return programme

CO-OPERATION WITH THIRD COUNTRIES Essential dimension as already said Importance of consular cooperation for the identification of the nationality of the persons and the delivery of travel documents Direct contacts with third countries through Immigration Liaison Officers (ILOs)

COMMON MINIMUM STANDARDS Considered at the beginning by Ministers as a possible obstacle to administrative co-operation Very strange beginning with a directive on mutual recognition of expulsion decisions But interesting new developments (including article 17 of the directive on family reunification) Important in order to facilitate return but also to protect human rights and dignity of returnees

RESULTS OF THE ACTION PROGRAMME Lack of evaluation! Reason: non-legally binding instrument outside «open method of coordination» refused by Member States in Immigration and Asylum policy Debate: to use the Schengen evaluation system of peer review (as envisaged in the project of Constitution)

LEGISLATION Finally recognised as a need by the Member States in order to facilite cooperation but also to protect human rights and dignity of emigrants 3 instruments in force and one currently discussed by the Council for adoption

DIRECTIVE 2001/40 OF 28 MAY 2001 ON THE MUTUAL RECOGNITION OF EXPULSION DECISIONS Legal framework for enforcement of administrative expulsion decision of one Member State by another one through mutual recognition and financial compensation Not effective at all Very early due to a lack of legislative harmonisation Absence of records of expulsion decisions (despite SIS) Is it not contradictory with the logic of the EU policy at its current stage of development? (principle of state individual responsibility at the basis of the Dublin II regulation for asylum, but not for Immigration policy?)

Shows that legislation is necessary and complementory to coordination DIRECTIVE 2003/110 OF 25 NOVEMBER 2003 ON ASSISTANCE IN CASE OF TRANSIT FOR THE PURPOSES OF REMOVAL BY AIR Very pragmatic text adopted in order to facilitate transit by air through the territory of another Member State when there are no direct flights in the Member State organising the return Shows that legislation is necessary and complementory to coordination

The text known as the « Charter decision » provoking hostility of NGOs DECISION 2004/573 OF 29 APRIL 2004 ON THE ORGANISATION OF JOINT FLIGHTS FOR REMOVALS FROM THE TERRITORY OF TWO OR MORE MEMBER STATES The text known as the « Charter decision » provoking hostility of NGOs Aim is to facilitate return, in particular by saving money Also in the mind of certain politicians to show symbolically the willingness of EU to return illegals Accompanied by common guidelines on security provisions (annex with an unclear status from a legal point of view)

Before concluding It is important to underline the role of new technologies (databases like the future VIS which will play a role) Also the importance of fingerprints (Eurodac does not only concern asylum seekers but also illegals arrested at the border)

FOOD FOR TAUGHT AND QUESTIONS? Is there a return policy? How and to which extend is and will return be a challenge for Ukraine? In particular, is there a risk for a readmission trap? (see Albania) Is the legal framework for return coherent in Ukraine, Moldova and Belarus? How efficient is, can or should return policy be in those countries? Could those three countries cooperate between themselves, with EU Member States or the EC (return and not only readmission agreement)? What means will be available for the return policy at national level and which financial support at EU level?

FURTHER HELP IN THE FUTURE E-training module will be prepared by the Odysseus Network in cooperation with IOM and the UNHCR in the framework of the Soderkoping process during 2006 and available for beginning 2007