1. EU RETURN POLICY A GENERAL PRESENTATION by Philippe DE BRUYCKER1
EU RETURN POLICY
A GENERAL PRESENTATION by
Philippe DE BRUYCKER
Brussels University & Odysseus Academic Network

2. 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

3. 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)

4. 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

5. PRINCIPLE 1 RETURN IS A NECESSITY
See point 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 ».

6. 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)

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

8. 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 »

9. 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)

10. 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)

11. 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

12. 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

13. 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

14. 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?)

15. 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

16. 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)

17. 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

18. 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)

19. 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

20. 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?)

21. Shows that legislation is necessary and complementory to coordination
DIRECTIVE 2003/110 OF 25 NOVEMBER 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

22. 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)

23. 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)

24. 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?

25. 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