Green Paper: return of illegal residents

1) OBJECTIVE

To launch a debate among stakeholders on the need for a common return policy for people residing illegally in the EU; to analyse the legal issues which arise from the elaboration of a return policy while respecting human rights and human dignity.

2) ACT

Green Paper on a Community return policy for illegal residents [COM(2002) 175 final - Not published in the Official Journal].

3) SUMMARY

1. At the Tampere European Council of December 1999, the Member States undertook to define a common immigration and asylum policy, subject to the adoption of a common legal framework and of a coordination method.

Subsequently, at the Laeken European Council (point 40 of the conclusions) in December 2001, the Council was asked to present an action plan on the fight against illegal immigration, based on the Commission Communication of November 2001. The overall action plan was then adopted on 28 February 2002.

2. The Commission is aware of the fact that the return policy is closely linked to the establishment of a common asylum and immigration policy. It would also emphasise the importance of considering the migration problem within the framework of the EU's external relations.

Return, asylum and immigration

3. Before embarking on any analysis of the return policy, this Green Paper states the scope of the analysis itself. The question of return may affect legal residents in a Member State who, after a certain period, wish to return to their home country, as much as illegal residents who have to leave the territory. The Green Paper applies to the second category in two forms: voluntary return and forced return.

4. The Commission notes that, for humanitarian reasons, voluntary return is preferable to forced return. However, it is important to define a forced return policy because it will have a dissuasive effect on potential illegal immigrants.

5. The return policy must also take account of the obligations incumbent on the Member States pursuant to international agreements or conventions on asylum and, more broadly, human rights. In addition to the 1951 Geneva Convention and the 1967 New York Protocol Relating to the Status of Refugees, the Member States respect and apply the provisions of the European Convention for the Protection of Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union proclaimed in Nice in December 2000.

6. It may be that the conditions which determined the recognition of refugee status or of any form of international protection are no longer present. In this case, while respecting the principle of non-refoulement, the return policy must be accompanied by a series of measures promoting cooperation with the countries of origin so that the return is sustainable.

Cooperation between Member States

7. Since forced returns represent a serious infringement of individual freedom, the Commission calls on all stakeholders concerned to reflect on a number of questions which the elaboration of a return policy gives rise to. In the first place, the Commission envisages the possibility of proposing a directive on Minimum Standards for Return Procedures. It then calls for a debate on the possibility of establishing:

• common definitions;
• provisions regulating the expulsion procedure other than those already laid down by Directive 2001/40/EC, while considering the specific position of certain categories of people such as minors;
• provisions which regulate the expulsion measure applied when accompanying the person back to the border;
• the conditions under which it is possible to appeal against an expulsion measure (with or without suspensive effect);
• the conditions which could justify the adoption of a coercive measure such as placement in a detention centre and the maximum duration of detention;
• standards governing the requirement to readmit the illegal resident between Member States. The Commission would point out that, apart from the Dublin Convention and Directive 2001/55/EC, readmission into the Member States remains governed by bilateral agreements. In order to overcome this legislative gap, in 1999 Finland presented a proposal which is still being studied;
• new forms of cooperation between the bodies concerned (the possibility of using the financial support of the ARGO programme is not excluded). Exchanges of liaison and information officers, seminars, the setting up of a system of visa identification or the definition of a standard travel document for return purposes, are but a few of the possibilities on which the Commission calls for reflection;
• an independent programme which can financially support projects of return to the country of origin since these projects have hitherto been financed by the Joint Actions and the European Refugee Fund.

Common re-admission policy

8. At the Tampere European Council, the Member States were called on to strengthen cooperation with the countries of origin in order to facilitate returns. Furthermore, pursuant to the new powers conferred on the Community in matters of readmission (Article 63(3)(b) of the EC Treaty), the Council was invited to conclude readmission agreements or insert standard clauses in the association or cooperation agreements concluded with third countries (points 26 and 27 of the conclusions).

9. As they are not readmission agreements in the strict sense of the word, the standard clauses only commit the contracting parties to readmit their own nationals, nationals of third countries and stateless persons. By way of example, since 1996 readmission clauses have been inserted into the agreements with Algeria, Armenia, Croatia, Lebanon and in the Cotonou Agreement concluded with the ACP countries (African, Caribbean and Pacific countries).

10. When a direct return to the country of origin is not possible, the Commission invites the relevant stakeholders to consider the possibility of concluding "transit agreements" with third countries willing to help in ensuring transit of people to their country of origin.

For more information, please consult the full version of the Green Paper.

Last updated: 17.10.2005