COM(2021) 56 final
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL EMPTY
Enhancing cooperation on return and readmission as part of a fair, effective and comprehensive EU migration policy
The New Pact on Migration and Asylum sets out a comprehensive approach to migration, bringing together all relevant policy strands to build a long-term and sustainable system in the EU for managing migration and asylum. A fair and effective system needs to guarantee quick protection and integration of those in need of international protection, and at the same time provide for the effective return and sustainable reintegration, in their countries of origin, of those who do not have the right to stay.
The New Pact underlines the importance of comprehensive, balanced, tailor-made and mutually beneficial migration partnerships with countries outside the EU, of which effective readmission is an important element. These partnerships will take into account both the EU’s and the partners’ interests and be embedded into the EU’s overall relations with third countries, alongside other policies, such as development cooperation, foreign investments and trade. Through these partnerships, the aim is to address common challenges and capitalise on shared opportunities by: enhancing migration governance and management, including border management, the fight against migrant smuggling and human trafficking; supporting refugees and host communities in partner countries; building economic opportunity and addressing the root causes of irregular migration; developing legal pathways and attracting skills and talent to Europe, and stepping up cooperation on readmission and reintegration.
Building a common EU system for returns based on stronger, effective and humane return procedures inside the EU, as well as more effective cooperation with external partners on readmission, is one fundamental aspect of a comprehensive and credible EU migration policy. In a situation where Member States’ policies are closely interconnected and the actions taken by one Member State impact the others, there is a need for a new and sustainable European framework that provides consistency, certainty and clarity. The New Pact paves the way towards a common EU system for returns, where a consistent and coherent approach can ensure that returns can deliver within the overall objectives of the EU’s migration and asylum policy. This requires improved procedures that reduce the fragmentation of national approaches, and closer cooperation and reinforced solidarity between all Member States.
The success of returns, readmission and reintegration also depends on the EU and its Member States acting in unity, in a Team Europe approach, using a wide range of tools and relevant policies, and acting in a coordinated and continuous dialogue with partner countries.
To achieve concrete progress in relation to cooperation on readmission, in October 2018, the European Council called for mobilising the necessary incentives by using all relevant EU policies, instruments and tools including visa policy. The revised Visa Code stipulates that the Commission assess the level of readmission cooperation with third countries and reports to the Council (Article 25a) on an annual basis. As confirmed by the New Pact, the process of regular assessments under the Visa Code would facilitate a structured approach to cooperation on readmission with third countries over time and be an important tool that contributes to the successful implementation of the wider policy objectives in the area of migration and asylum.
Against this background, the Commission has completed the first factual assessment under the Visa Code, based on quantitative and qualitative data provided by Member States and Schengen Associated Countries and data collected by Eurostat and the European Border and Coast Guard Agency (Frontex) on return and irregular arrivals. This assessment provides an evidence-based, comprehensive and detailed picture of cooperation thereby helping to identify how to improve cooperation in a targeted manner. As set out in the Visa Code, the assessment is presented to the Council, and it is the first step in a process involving discussions with Member States and partner countries.
This Communication outlines the overall findings of the first annual assessment of partner countries’ cooperation on readmission. It describes how the Commission, in close cooperation with the High Representative and the Member States, where relevant in line with their respective competences, intends to build upon the process initiated by this assessment to further address internal and external challenges linked to return and readmission in an integrated, structured and effective manner.
In line with the Commission’s proposal for a new Asylum and Migration Management Regulation, this assessment could also contribute to the process of identifying incentives in policy areas beyond visa to improve cooperation on readmission, taking into account the Union’s overall interests and relations with partner countries. Pending the adoption of that proposal, and in view of the key importance of making tangible progress on readmission cooperation, the Commission will already take account of this wider consideration in its follow-up to this first assessment. This assessment is valuable in addressing how to step up readmission cooperation with relevant partners. More broadly, it could also inform on how to strengthen cooperation on migration with those partners as part of a comprehensive approach.
2.Challenges and obstacles - setting the scene for a more effective EU return and readmission system
Despite improved efforts to tackle irregular migration and ensure the effective return of those who do not have the right to stay in the Union, a lot remains to be done. Close, mutually beneficial cooperation with partner countries on various areas as part of comprehensive migration partnerships should contribute to reducing irregular arrivals. Today, too many people still continue to take unsafe and irregular routes to come to Europe, often prompted by difficult socio-economic and political conditions. Between January and November 2020, over 110 000 people came to Europe irregularly. Stepped up engagement on countering migrant smuggling remains essential.
A large share of migrants arriving irregularly are unlikely to receive protection in the EU or to be granted the right to stay for other reasons. In 2019, the average EU recognition rate for first time applications was just 30%. The return of those who have no right to stay remains a challenge. Out of those that need to be returned, only one third effectively return, and of those less than 30% do so voluntarily. The unsatisfactory performance on return and readmission is due to the several challenges that Member States face when carrying out procedures to order the return of irregular migrants and when cooperating with third countries on readmission.
The COVID-19 pandemic has added a new layer of complexity to the functioning of return and readmission operations. Even though travel restrictions remain in place across the globe, asylum and return procedures should continue - taking due account of the measures necessary to protect the health of returnees and of receiving communities. Resettlement activities were also disrupted due to COVID-19 restrictions but have resumed to a significant extent.
2.1. Challenges in return procedures within the Union
The legal and administrative return frameworks of the Member States vary significantly, with gaps and good practices in each national system. Identifying and tackling such gaps and promoting existing good practices is the first step to make return procedures sustainable, swift and predictable, and to protect and promote migrants’ rights, in line with EU law and the Charter of Fundamental Rights.
Significant gaps between asylum and return procedures, lengthy procedures including at the stage of appeal, difficulties in preventing absconding, insufficient resources, infrastructures and limited administrative capacity to follow up on return decisions, including by requesting readmission to third countries, are some of the key obstacles towards an effective return policy.
Endeavouring that more migrants without the right to stay in the EU choose to leave voluntarily is the best way to undertake return with efficiency and promote more sustainable solutions. Voluntary returns combined with effective reintegration strategies increase the acceptance and success rates of these operations.
Information collected during Schengen evaluations and through other sources, such as the European Migration Network, confirms that despite a general preference by Member States for voluntary returns, there are persistent challenges in providing sufficient support to irregular migrants willing to depart voluntarily. This is due to the narrow scope of existing programmes (e.g. covering only rejected asylum seekers), limited return counselling, and significantly varied levels of assistance provided to returnees.
It is also essential that vulnerable people, in particular unaccompanied minors and victims of trafficking, receive specific, tailor-made assistance and protection, both within the EU and in partner countries. The safeguards established by the EU to protect the victims of trafficking, and to ensure the respect of the non-refoulement principle, taking into account the needs and specific circumstances of migrants as well as the need to find sustainable solutions to their situation, must be effectively guaranteed during all steps of the return process. For children in particular, concrete safeguards should be put in place to ensure that their rights are respected.
At the same time, there is a need to find practical solutions to prevent absconding of those who do not have a right to stay. Finding a good balance between increasing the availability and use of effective alternatives to detention, and ensuring that specialised facilities are available and well-equipped when detention is used, can contribute to a more effective process of non-voluntary returns. In all cases, the specific circumstances of the individuals concerned need to be taken into account and fundamental rights need to be fully respected by the EU, including its agencies, and all Member States. As regards children, it is essential to make available and consistently use alternatives to detention. For return operations to be successful, the work of all actors including EU agencies and international organisations should be streamlined and supported by adequate resources at all stages of the process, including when engaging with third countries for readmission. The recruitment by Frontex of independent fundamental rights monitors, which complements the existing pool of monitors from competent national bodies, will reinforce the EU capacity to oversee the respect of fundamental rights during all forced return operations organised by the Agency.
Currently there is a significant difference between the number of return orders issued and readmission requests to third countries, as Member States tend not to initiate the readmission process when they are not confident that the partner country will cooperate in identifying and re-documenting their nationals. As cooperation with third countries would improve, Member States need to swiftly follow-up return orders with a readmission request to use the improving cooperation framework to its full potential.
Independent and effective monitoring systems can enhance the protection and guarantee the respect of returnees’ fundamental rights and dignity during return operations.
2.2. Challenges in readmission cooperation with partner countries
Effective readmission processes rely on the capacity and commitment of partners to readmit irregular migrants. Obstacles may appear at different stages of the process – for example, when Member States follow-up with a readmission request, or a request for identification and re-documentation to the third country concerned. The quality, speed and effectiveness of the assistance provided by partner countries for identification (type of evidence accepted, possibility to organise interviews and identification missions and their outcomes, etc.) and for the issuance of travel documents is an essential element of the readmission process. The timeliness of these steps is equally important, as protracted processes result in high costs for the Member States and often in migrants absconding and frustrating return.
The refusal by certain countries of non-voluntary returnees is also an issue of concern. Refusal of charter flights, in particular when the number of returnees is high, or additional conditions for return operations further jeopardise or delay the return process.
Member States experience these obstacles in different ways and to a different extent, depending on which cooperation framework is used or on whether certain practices are extended to all Member States by partners.
3.Improving the effectiveness of return, readmission and sustainable reintegration
3.1. A common EU system for returns
A common EU return system needs first and foremost clear rules and procedures in place, which are both effective and guarantee the respect of fundamental rights. It must build on solid legal ground providing for fair and effective procedures, closely interlinked with those related to asylum, including at the external borders of the EU. The proposal for the recast Return Directive is the cornerstone of the new common EU return system. It would help reduce the length of procedures and, together with the proposal for an amended Asylum Procedure Regulation, bring rules on asylum and return closer together, strengthening the support to voluntary return and reintegration, reducing absconding and unauthorised movements and modernising the way procedures are managed with the help of dedicated IT systems. To make these improvements a reality, the European Parliament and the Council need to make swift progress, start the trilogues and find agreement on this proposal as a matter of priority. The Commission will continue to work closely with the other institutions to this end.
The new legal framework should integrate the proposed return sponsorship – the new form of solidarity contribution to assist Member States under migratory pressure in carrying out returns – and support its implementation. Furthermore, it would set up a new asylum and return border procedure, operating in a fast and effective manner to prevent irregular migration and unauthorised movements to the benefit of all Member States acting in solidarity.
A solid legal framework is however only as good as its implementation. An effective and thorough implementation and monitoring of the common rules on returns is crucial to increase the effectiveness of return. The Schengen evaluation mechanism already supports the EU return system by identifying and addressing shortcomings, sharing good practices, consolidating mutual trust and reinforcing the protection of individual’s rights during all the steps of the return process. Strengthening further the Schengen evaluation mechanism would support the EU return system in achieving its full potential.
An effective and common EU system for returns also relies on very close coordination and cooperation among Member States, EU institutions and agencies, ensuring coherent action at all levels. It is therefore necessary to further develop strong governance in the area of return and practical and operational support by Frontex, both in relation to the internal aspects of the return policy as well as its external dimension.
The New Pact announced the forthcoming appointment of a Return Coordinator, who will be supported by a High Level Network and work closely with the European Border and Coast Guard Agency (Frontex). The Return Coordinator will bring together return and readmission stakeholders in EU Member States and encourage work towards a common objective. This will facilitate cooperation among Member States, including by maximising the positive impact of return sponsorship. At the same time, support to and cooperation between Member States requires that Frontex is fully effective in the area of returns, providing operational support to the national authorities, assisting with the identification of returnees and the acquisition of travel documents, the organisation of return operations and support to voluntary departure and reintegration. The rollout of Frontex’s standing corps, which started in January 2021, accompanied by the establishment of a dedicated division, led by a Deputy Executive Directive to be appointed as a matter of priority, will equip the Agency to deliver on its reinforced mandate in the area of return.
Governance in the area of return and the overall effectiveness of this policy area would be equally reinforced by the Commission drawing further on the yearly assessment of cooperation on readmission to consider measures in other relevant policy areas, beyond visa to improve cooperation on readmission. In this way, the process would factor in the work previously undertaken in the Council towards a coordination mechanism, by which Member States can signal the need to identify measures at EU or national level that could contribute to improve cooperation on readmission with third countries.
Beyond governance, an enhanced engagement with third countries on readmission based on the assessment of their level of cooperation, as part of broader migration partnerships will be fundamental for an efficient return system, including the effective application of return sponsorships and the border procedure.
Finally, in the spirit of a common EU return system, the assessment should be used to ensure that readmission cooperation with third countries works for all Member States, and not only with some, and that in this way, all Member States deliver on returns.
3.2. Strengthening cooperation on return, readmission and sustainable reintegration with partner countries
In line with the New Pact, dialogue and cooperation on return, readmission and sustainable reintegration will continue to be treated as part of comprehensive, tailor-made, balanced and mutually beneficial migration partnerships.
Every State has the obligation to readmit its own nationals under international customary law, and multilateral international conventions such as the Chicago Convention on International Civil Aviation regardless of the existence of specific instruments structuring readmission cooperation. It is important to make progress in readmission cooperation, and this may be done through the use of different instruments.
Nevertheless, specific agreements help to facilitate readmission and clarify the system for the EU and the third country alike. The EU has so far concluded 18 readmission agreements and six arrangements. Negotiations for readmission agreements with Nigeria, Tunisia, Morocco and China are underway. Readmission provisions also feature in larger EU agreements with certain third countries or regions, such as the successor to the Cotonou Agreement between the EU and 79 African, Caribbean, and Pacific countries (ACP) on which negotiations have recently been concluded. Member States also have bilateral readmission instruments with third countries.
All such instruments deliver a better, more structured and predictable cooperation when their implementation is followed closely in dedicated governance structure. Where agreements or arrangements are already in place, engagement with third countries will continue in the context of existing frameworks (Joint Readmission Committees and Joint Working Groups) to ensure that the cooperation instruments deliver actual results. In this vein, the factual assessment produced by the Commission should inform a discussion with Member States to identify countries with which new readmission agreements or arrangements could be pursued.
Return, readmission and reintegration are a common challenge for the EU and its partners. The support that the EU and its Member States have so far mobilised to assist voluntary return and support sustainable reintegration delivered clear benefits for the EU and partner countries and the effectiveness of the return process. By addressing the needs of individual returnees, the communities to which they return, and the relevant institutions and systems of partner countries the EU support has contributed to their local development. To improve sustainable reintegration, more could be done to establish better linkages with existing local development initiatives and national strategies to build third countries’ capacity to manage return and reintegration and ownership while fostering stronger cooperation in the EU.
4.The first annual assessment of readmission cooperation with partners
The assessment of third countries’ level of readmission cooperation, required by Article 25a of the Visa Code, provides the Union with a useful tool to help it measure, on an ongoing basis, the cooperation that exists with visa-bound partners and identify what works well and where attention needs to be focused.
The Visa Code identifies the immediate next steps that, depending on the assessment of the level of cooperation, could lead to the adoption of incentive measures in the field of visa policy. Regarding third countries whose level of cooperation needs to be improved with most Member States concerned, the Commission will, after discussing with Member States and taking into account the EU’s overall relations with the country concerned, consider where the application of visa measures could be relevant and effective. Potential issues with the level of cooperation will also be discussed with the countries concerned as part of the EU’s broader dialogues on migration.
If, based on this assessment and after discussing with the Council, the Commission considers that a partner is not cooperating sufficiently, taking into account the steps it has taken to improve the level of cooperation of the third country concerned in the field of readmission, and the Union’s overall relations with the country concerned, it shall submit a proposal to the Council to adopt an implementing decision applying specific restrictions related to short-stay visa processing (related to the level of the visa fee or visa procedures). When doing so, the Commission should still continue its efforts to improve cooperation on readmission with the country concerned. If a third country cooperates sufficiently on readmission, the Commission may propose to the Council to adopt a number of positive visa measures (temporary visa facilitations such as a reduction of the visa fee, a reduction of the processing time or an increase in the period of validity of multiple entry visas).
The assessment of third countries’ cooperation on readmission is based on a comprehensive set of indicators to assess practices at all stages of the readmission process - from identification of irregular migrants to the issuance of travel documents and effective return.
In agreement with the Council, the geographical scope and process of the data collection was established and resulted in the assessment of those third countries whose nationals are subject to the short-stay visa requirement and have been issued more than 1 000 return decisions in 2018. Drawing on the lessons learnt from conducting this first assessment, and after discussions with the Member States, the Commission could consider further clarifying or modifying the selection criteria for future assessments.
The data and qualitative information sought from Member States reflect the indicators set out in Article 25a(2) of the Visa Code, including their practical cooperation experiences with third countries, notably on the timeliness of identification and re-documentation procedures, as well as third countries’ acceptance of EU travel documents and return operations, including charter flights. The assessment also accounts the extent of EU engagement so far with each third country and the steps already taken to improve cooperation on readmission.
This comprehensive set of data and information provided by Member States allows for a systematic and in-depth analysis, goes beyond an initial and sometimes inaccurate conclusion from one single indicator, such as the return rate and gives a comprehensive picture of Member States’ experience with the level of cooperation on readmission. Such an assessment also provides valuable details on specific readmission cooperation problems such as obstacles to identification, delayed issuance of travel documents, non-respect of stipulated deadlines and non-acceptance of charter flights.
Finally, the assessment process also takes into account other relevant criteria, such as the number of irregular arrivals, allowing to contextualise the degree of cooperation in the broader context of past and current migration flows.
4.3. Overall Findings
Based on the assessment, and while contexts in partners vary significantly, it appears that for almost one third of the countries covered by the 2020 assessment cooperation works well with most Member States, for almost another one third the level of cooperation is average, with improvements needed with regard to a number of Member States while for more than one third the level of cooperation needs to be improved with most Member States concerned.
Member States’ data and information confirm that all EU readmission agreements bring a significant added value in facilitating cooperation on readmission. This is also the case for four out of the six readmission arrangements. Member States’ bilateral readmission instruments, which help structure cooperation in a similar way, are mostly respected by third countries, but the level of cooperation varies depending on the instrument and cooperation is rarely extended to Member States that do not have such an instrument in place. This can result in an overall weaker level of cooperation for the EU as a whole. Finally, for a number of third countries, very few Member States have any type of cooperation instrument in place.
The assessment confirms that instruments that structure cooperation can have a beneficial impact on the effectiveness of that cooperation, but also that it is important to consider the benefits of the type of instrument sought, for each specific situation.
The assessment shows that the main obstacles are the identification of irregular migrants and issuance of travel documents. Once these processes are successfully completed, the organisation of flights and the actual return are usually carried out successfully. However, acceptance of charter flights and greater flexibility and timeliness in agreeing the details of return operations can increase the effectiveness of the whole process, in particular when the number of returnees is high.
Experience has shown that the chances of a successful and swift cooperation increase with the deployment of electronic platforms for processing readmission applications (Readmission Case Management Systems - RCMS) and with European Return or Migration Liaison Officers, facilitating the process locally. When RCMS are in place, in support of a functioning agreement or arrangement, they make a positive contribution to improved readmission cooperation.
As part of rolling out the comprehensive approach to migration set out in the new Pact, the Commission, the High Representativee and Member States will, in line with their respective competences, seek to enhance cooperation on return and readmission by developing a common EU return system, and pursuing deeper, comprehensive partnerships on migration with third countries, in the context of their overall relationships with them. This work will entail several mutually reinforcing strands:
In line with the comprehensive approach proposed in the New Pact on Migration and Asylum, and in order to address the interlinked internal and external dimensions of the return process:
·The Commission will pursue a better-functioning common EU system of returns. To set the basis of a common EU system for returns that contributes to a sustainable management of migration and asylum, it is essential to reach an agreement on the proposals for a recast of the Return Directive and for an amended Asylum Procedure Regulation. The Commission stands ready to support the European Parliament and the Council to that effect, in particular the start of the trilogues and the swift agreement on the recast of the Return Directive. With these improvements of the legal framework, supported by the appointment of the Return Coordinator and of the High Level Network for Return, and relying on the operational support of Frontex, the EU would take a major step forward in reducing the obstacles that hamper return procedures in the Member States. This will amplify progress in the cooperation with partners on readmission and support the development of return solidarity among Member States.
·The Commission will systematically monitor the implementation of return rules, including through the Schengen evaluations mechanism and, where appropriate, infringement procedures, both when it comes to the implementation of the return procedures, such as the issuance of return decisions and their effective enforcement, as well as when it comes to the respect of the rights of migrants – children and vulnerable people in particular – during all steps of the return process. The financial resources provided by the new Asylum, Migration and Integration Fund will also be used to target and address existing gaps in all Member States.
·The Commission will adopt a Voluntary Return and Reintegration Strategy, which will help develop a common framework for voluntary returns and reintegration, establishing a coherent voluntary return system across EU Member States and supporting also the voluntary return of migrants from partner countries to their countries of origin as well. In addition, it will strengthen the EU’s capacity to support sustainable reintegration of returnees, drawing on the funding instruments available to finance EU cooperation with partner countries on migration available in the current Multiannual Financial Framework and in line with the programming of this assistance.
The assessment of third countries’ level of cooperation on readmission triggers a series of steps, in line with the process set out in Article 25a of the Visa Code. On this basis, over the next months:
·The Commission will discuss the findings of the assessment report with the Council with a view to drawing conclusions on how to step up cooperation on readmission, where relevant. Discussions could also inform on how to strengthen cooperation on migration more broadly, as part of the comprehensive partnership approach with third countries set out in the New Pact.
·The Commission, the High Representative and Member States will, in line with their respective competences, proactively reach out to partner countries, in light of the assessment of readmission cooperation, and actively engage where areas for improvement have been identified in the report. This will be done on an ongoing basis and as part of the broader contacts on migration with partner countries at political and/or technical level. This will be done by building on the already existing frameworks for cooperation and dialogue and setting up new migration dialogues where needed, while ensuring that migration features more prominently in political dialogues.
·As part of this work, the Commission will seek to improve the implementation of existing EU agreements and arrangements on readmission, move towards the completion of ongoing readmission negotiations, and consider as appropriate the launch of new negotiations, as well as practical cooperative solutions to increase the number of effective returns.
·The Commission could then make a proposal to the Council on more restrictive or more favourable visa measures in line with the Visa Code. In doing so, it will take into account the Union’s overall relations with the countries concerned, in close coordination with the High Representative. In this context, the Commission will consider links to other relevant policies, instruments and tools.
·The Commission, the Council and the Member States, in line with their respective competences, will develop a fully coordinated approach for acting in unity and speaking to third countries with one voice. Enhanced means of bringing together the outreach and engagement undertaken by the Union and by the Member States should be developed, building on the work already started. The coordination should, among other things, contribute to the follow-up given to the assessment report on readmission cooperation, and facilitate the identification of tailor-made partnerships, drawing together the appropriate mix of policy tools and taking account of the respective competences of the different actors. Better EU coordination on the ground in the partner countries should also be pursued, bringing together EU Delegations and Member States’ local embassies.
When taking the above steps on readmission, the EU will continue to pursue the overall comprehensive and partnership-based approach to the external dimension of migration as set out in the New Pact on Migration:
·The Commission will propose a new Action Plan against migrant smuggling for 2021-2025, stimulating cooperation between the EU and non-EU countries. Fighting migrant smuggling is a common challenge for both the EU and partners that needs to be addressed jointly.
·The Commission will also seek a more coherent, strategic and flexible use of EU funding. EU funding under the next Multiannual Financial Framework (MFF), including the Asylum Migration and Integration Fund (AMIF), the Border Management and Visa Instrument (BMVI), the Neighbourhood, Development and International Cooperation Instrument (NDICI), with the 10% spending target for migration-related actions, and the Instrument for Pre-accession Assistance (IPA III) will be used in a coherent, strategic and flexible way to ensure they contribute to the implementation of the EU migration priorities and facilitate, among other objectives, cooperation on readmission, voluntary returns and sustainable reintegration. The EU will have to continue and improve synergies between internal and external funds under the new Multiannual Financial Framework (MFF) and seek complementarities between EU and Member States’ funding in a Team Europe approach.
·Engagement on readmission will continue to be part of broader partnerships pursuing all the areas of cooperation with partners laid out in the New Pact. These also include protecting those in need and supporting host countries, building economic opportunities and addressing the root causes of irregular migration, strengthening migration governance and management, and fostering legal migration and mobility, while fully respecting Member States’ competences. As regards the latter, the Commission will launch the Talent Partnerships initiative to promote legal migration and mobility, through a High-Level conference bringing together the Member States, the business sector, education and other actors. This will provide a comprehensive EU policy framework as well as funding support for cooperation with third countries, to better match labour and skills needs in the EU, as well as being part of the EU’s toolbox for engaging partner countries strategically on migration. In parallel, the Commission will present in 2021 a ‘skills and talent’ set of proposals to further support Member States’ in meeting their labour migration needs.