COMMUNITY RETURN POLICY ON ILLEGAL RESIDENTS
(Com (2002) 175)
Letter from the Chairman to Mr Adrian
Fortescue, Director-General, Justice and Home Affairs
Directorate-General, European Commission;
and to Lord Filkin, CBE, Under-Secretary of State, Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) of the European Select Committee considered this
document at its meeting on 17 July.
The Green Paper is clearly an important document,
which is of particular interest to the Committee in view of its
current inquiry into the Commission's Communication on a common
policy on illegal immigration. The Committee found it a thoughtful
and balanced analysis of one of the most difficult elements of
a policy to combat illegal immigration.
The Committee does not propose to comment in
detail on all the specific issues on which the Commission is seeking
viewsthere will no doubt be further opportunities when
it brings forward specific legislative proposals; and it notes
that the Government has undertaken to provide a more detailed
consideration of the content of the Green Paper "as soon
as possible". But it would like to take the opportunity to
give its general reaction to the Green Paper and comment on two
of the more important issues.
The Committee welcomes the priority that the
Green Paper attaches to encouraging voluntary returns wherever
possible in preference to compulsory returns and hopes that the
Commission will pursue the ideas in the GreenPaper for developing
incentives for returnees who are prepared to return voluntarily.
It also fully endorses the paramount importance of ensuring compliance
with international obligations and respecting the human rights
of returnees, and notes with approval the proposal that there
should be safeguards for some categories of illegal immigrants,
such as those with family ties.
The Committee agrees wholeheartedly with the
need for a gradual and carefully planned approach to large return
movements, involving assistance packages, careful selection of
the returnees, proper reception arrangements etc. It also sees
considerable scope for a common approach to returns, for example
a common assessment of the feasibility of removal to particular
Two issues were of particular interest to the
(i) the idea of mutual recognition of return
decisions. The Committee acknowledges that there would be a number
of difficulties to be overcome with such an approach, but the
principle of it would be consistent with a common policy on immigration
and illegal immigration. The Committee believes that it is time
that the EU took a fresh, and possibly radical, look at the approach
which currently holds sway of assuming that illegal immigrants
should, if possible, be passed back from country to country along
the route they travelled. This is an inhumane procedure for those
who are subjected to it and also generates an enormous amount
of work, often to little purpose in trying to apportion responsibility
as between the different countries through which they have passed.
Moreover, within the Union itself, or at least within the Schengen
area, there is little purpose in transferring illegal immigrants
from one Member State to another when there is no physical obstacle
to their return. (A similar principle underlies the Dublin Convention,
which has also proved to be ineffective.) If there were a presumption
that an illegal immigrant should be the responsibility of the
Member State where he is apprehended, many of the current difficulties
would fall away. No doubt others would emerge. In particular,
there would need to be a means of redressing the financial imbalances
that would result as the Green Paper acknowledges. But such a
system might well be more effectiveand cost-effectivethan
the present one.
(ii) the whole issue of readmission agreements
and their possible integration into the EU's relations with third
countries is a particularly difficult and sensitive one. The Green
Paper acknowledges frankly that there is a problem of "leverage"
in terms of ensuring that countries take back their own nationals.
The Committee firmly believes that arrangements of this kind should
not focus solely on the penalties that might be applied to recalcitrant
states: although sanctions may be appropriate in some circumstances,
it is also important to look for suitable incentives that would
make such arrangements more palatable to the countries concerned.
17 July 2002
Letter from Lord Filkin, Parliamentary
Under Secretary of State to the Chairman
Thank you for your letter of 17 July. I agree
that the Green Paper is an important document and the Government
welcomes the opportunity to discuss common action on returns policy
with our EU partners. Clearly, the ability to return illegal migrants
to their country of origin is a key aspect of an effective approach
to tackling migration and this is an area where further international
co-operation is a priority.
We provided some early thoughts on the contents
of the Green Paper when it was deposited with the Committees in
May and I also referred to the importance of returns policy during
my evidence to Sub-Committee F on 19 June. We have undertaken
to provide the Committees with further detailed comments and will
provide you with a copy of the full written response to the Commission,
as requested by 31 July.
In the meantime, I would like to take this opportunity
to respond to some of the points you helpfully made in your letter.
The Government strongly endorses the need to carry out returns
in a safe and dignified manner and with regard to our international
obligations and the needs of vulnerable persons.
As a Government, we are committed to developing
a sustainable approach to returns policy. We agree with the Committee's
view that return programmes should be carefully designed to take
account of the needs of individual returnees and the situation
in their country of origin. The Commission Green Paper draws a
distinction between voluntary and enforced returns. Voluntary
returns are a vital component of the UK's returns policy and we
aim to expand voluntary returns, and to ensure that information
about the voluntary return option is made more widely available.
Legislative changes will make it possible for us to provide reintegration
support to voluntary returnees. Whether a person is permitted
to take up the option will depend on the individual circumstances
of their case and there will be circumstances in which enforced
return is necessary. At the same time, we have to accept that
a balanced approach will also include the possibility of enforced
Our view is that the overarching aim of EU returns
policy should be to develop practical measures to facilitate dignified,
sustainable returns from Member States. This includes, for example,
increased operational exchanges of information relating to the
logistics of returns programmesdocumentation and transport,
as well as exchanging information on conditions in countries of
origin. In addition, we fully endorse working in partnership with
countries of origin and transit and further developing these relationships.
The conclusions of the Seville European Council
call for components of a repatriation programme to be in place
by the end of 2002, based on the Green Paper and including facilities
for early return to Afghanistan. You may be aware that the High
Level Working Group on Migration and Asylum has a budget line
that supports co-operation with third countries in the field of
migration. The UK is supporting project bids this year for EU
voluntary returns programmes to Afghanistan.
The Government welcomes the Committee's endorsement
of the principle of mutual recognition of returns decisions, however,
we do not see this as over-riding existing arrangements for returning
non-EU nationals to other Member States. All member States agree
that the Dublin Convention is not as effective as it could be
but that is because of difficulties in showing that asylum seekers
have come from one particular Member State to another as well
as the difficulties inherent in returning failed asylum seekers.
However, all Member States are committed to the principle of the
Dublin Convention and as you are aware negotiations on the Council
Regulation to replace the Dublin Convention which addresses these
difficulties are currently underway.
As you know, the conclusions of the European
Council at Seville called for faster progress on the conclusion
of readmission agreements currently being negotiated and approval
of new briefs for the negotiation of readmission agreements with
countries already identified by the Council. Readmission agreements
provide a useful means of setting out reciprocal obligations on
returns and we welcome the negotiation of agreements where these
will genuinely assist readmission. We also endorse the inclusion
of migration management and readmission clauses in future co-operation
and association agreements with third countries.
The Seville European Council made it clear that
Member States are committed to working in partnership with source
and transit countries on migration and asylum issues, and co-operation
on returns has been identified as a priority by all member states.
This includes providing the necessary technical financial assistance
to countries where help is needed. Our intention is to work in
partnership with third countries wherever possible, though as
the Seville conclusions also point out we reserve the right to
look at options for further action in cases where partnership
does not deliver the progress we require.
29 July 2002
Letter from Lord Filkin to the Chairman
When the Green Paper was deposited with the
Committees in May, we provided you with early Government thoughts
on its contents, pending more detailed comment. I am pleased to
be able to provide you with a copy of the full UK response on
the Green Paper and apologise for the delay in doing so. This
is being sent simultaneously to the Commission to meet its deadline
of 31 July.
UK RESPONSE TO THE COMMISSION GREEN PAPER
ON A COMMUNITY RETURN POLICY ON ILLEGAL RESIDENTS
COM (2002)175, Issued 10 April 2002
The UK is grateful to the Commission for setting
out a number of key issues for discussion in the Green Paper.
We look forward to working with EU partners to improve the effectiveness
of returns policy. The ability to enforce returns is a key part
of any strategy to combat illegal migration, as reflected in the
Conclusions of the Seville European Council.
All Member States accept the need to carry out
returns in a safe and dignified manner and with regard to our
international obligations and the needs of vulnerable persons.
The overarching aim of an EU return policy should be to develop
practical measures to facilitate returns from Member States. There
is a pressing need to increase the proportion of expulsion decisions
that result in departure. We need to improve co-operation between
Member States and with third countries to overcome barriers to
removal. Co-operation at EU level should be sufficiently flexible
to allow groups of Member States to work together to devise solutions
to common problems. This approach could include pilot projects
for groups of Member States to work with key source and transit
countries where return is particularly difficult.
The UK welcomes recent progress at EU level
on readmission agreements with third countries. This highlights
the potential for a Community approach to add value to work carried
out by individual Member States. Implementation of Community level
readmission agreements should deliver enhanced co-operation with
third countries and clarify administrative and operational procedures.
At the same time, we should bear in mind that formal readmission
agreements are only part of the picture: further progress with
third countries can also be achieved through informal mechanisms
at bilateral level.
Similarly, we should recall that Member States
are likely to remain the main enforcement agents of return policy.
We should therefore develop co-operation at EU level with this
in mind, making sure that Member States retain sufficient scope
to act according to their individual priorities and to work bilaterally
with third countries.
We would welcome further discussion and analysis
of Member States' best practice to explore ways of adding value
to our efforts to carry out safe, sustainable returns. We should
also take full account of work already underway elsewhere to develop
best practice. The UK is not, however, convinced that there is
a pressing need for binding common standards on returns.
At this stage, Member States should focus on
developing operational co-operation (once again, in line with
the Seville Conclusions) and sharing information on best practice
in securing returns once a decision has been made. We should also
work together on identification and documentation, return and
reintegration in the country of origin. We do not consider that
this should take in the basis on which return decisions are made.
Neither do we see the need for common standards on detention.
At EU level, as in the Member States, return
policy should be taken forward as part of a comprehensive approach
to migration and asylum. A firm link should be made between return
policy and other measures taken to tackle illegal migration, such
as border management, document security and visa policy.
UK responses to the specific questions posed
in the Green Paper are set out below.
The UK agrees that common definitions would
be useful to facilitate information sharing and data comparison.
It is suggested that EUROSTAT needs to be involved in work on
definitions, as any data changes would affect our ability to compare
historical data. Any definitions would need to reflect data held
within, and available from Member States. Furthermore, in working
up agreed definitions, it is suggested that definitions used in
other relevant fora be explored as a basis for discussion.
The UK makes the following comments in response
to the suggested terms and definitions provided in the Green Paper.
ReturnGenus of the policy area. Return
comprises comprehensively the preparation or implementation aiming
at the way back to the country of origin or transit, irrespective
of the question, whether the return takes place voluntarily or
Broadly agree, but would suggest the following
wording: Return comprises the process of going back to a person's
country of origin or transit or a third country. The return may
be voluntary or enforced.
Illegal residentAny person who does not,
or no longer, fulfils the conditions for entry to, or presence
in, or residence on the territories of the Member States of the
Broadly agree, but would suggest the following
wording: Any person who does not fulfil, or no longer fulfils
the conditions for entry to, presence in or residence on the territory
of the Member State in which he is present.
Voluntary returnthe return to the country
of origin or transit based on the decision of the returnee and
without use of coercive measures.
Suggested wording: the departure to the country
of origin, transit or third country based on the informed wish
of the returnee. Such a return may be assisted, in that a Government
may provide support to the returnee or to an organisation providing
the return service.
Forced returnThe return to the country
of origin or transit with the threat with and/or the use of coercive
Compliant forced returnforced return
to the country of origin or transit with the threat and minor
use of coercive measures such as escorts.
Non-compliant forced returnforced return
with the major use of coercive measures, such as restraints.
It is suggested that only one definition is
requiredthat of (en)forced return.
Enforced returnthe compulsory return
to the country of origin, transit or third country, irrespective
of the wishes of the returnee.
Readmissiondecision by a receiving State
on the re-entry of an individual. Agree with this definition.
Readmission agreementAgreement setting
out the practical procedures and modes of transportation for the
return and readmission by the contracting parties of persons illegally
residing on the territory of one of the contracting parties.
Broadly agree. Alternative wording suggestedAgreement
setting out reciprocal obligations on the contracting parties,
as well as detailed administrative and operational procedures,
to facilitate the return and transit of persons who do not, or
no longer fulfil the conditions of entry to, presence in or residence
in the Requesting State.
RepatriationReturn to the country of
origin, in both voluntary or forced situations.
Broadly agree with this definition.
Expulsionadministrative or judicial act,
which terminates the legality of a previous lawful residence eg
in cases of criminal offences.
This term is not used in UK law, although we
recognise its wider use.
Expulsion orderAdministrative or judicial
decision to lay the basis for the expulsion.
Please see the comment above.
DetentionAct of enforcement, deprivation
of personal liberty for law enforcement purposes within a closed
Agree with this definition.
Detention orderAdministrative or judicial
decision to lay the basis for the detention.
Agree with this definition.
RemovalAct of enforcement, which means
the physical transportation out of the country.
Broadly agree with this definition, but would
suggest deleting the first six words.
The terms "removal" and "deportation"
are not synonyms.
Removal orderAdministrative or judicial
decision to lay the legal basis for the removal
Broadly agree with this definition. Would suggest
changing the words "to lay" for "which forms".
Re-entryNew admission to the territory
of a state after prior departure.
Broadly agree with this definition. Suggest
deleting the word "new" from the definition and changing
"prior" to "previous".
RejectionRefusal of (legal) entry at
a border post.
Suggest changing the term "rejection"
TransitSojourn in or passage through
a third country while travelling from a country of departure to
the country of destination.
Broadly agree. Suggest changing the words "sojourn
in" to "stay in".
SECTION 2: THE
The Green Paper helpfully sets out a wide range
of circumstances where return is a possibility. In line with the
focus of the Green Paper, the UK prioritises return of those residing
illegally. Voluntary returns are a vital component of the UK's
return policy and we aim to expand voluntary returns and to ensure
that information about the voluntary return option is made more
widely available. At the same time, we have to accept that a balanced
approach will also include enforced returns where a voluntary
approach is not viable. Therefore, the availability of voluntary
return has to be backed up by a clear message on enforced returns.
At the same time, there is a need to design
return programmes carefully to ensure that returns are sustainable
and in line with Member States' human rights obligations. Return
packages should be designed in line with the needs of the individual
and should be appropriate to conditions in the country of origin.
Their design should also seek to avoid creating a pull factor
for further irregular migration from the source country and to
avoid tension between returnees and the local community upon return.
The Green Paper highlights the relationship
between legal and illegal migration but suggests regularisation
of illegal migrants as an alternative to return. In this respect,
the UK agrees with the position set out in the Commission's Communication
on a Common Policy on Illegal Immigration that illegal entry or
residence should not lead to the desired stable form of entry.
Routine or large-scale regularisation of stay is unfair to those
who use legal migration routes and rewards, and possibly encourages
illegal entry and overstaying.
The UK would endorse the list of bullet points
in Section 2.3 of the Green Paper as topics for further consideration.
Co-operation with third countries and international organisations,
effective preparation for return and the need to increase the
number of decisions enforced are all priorities for further action.
We are particularly interested in the proposal to develop guides
to good practice on return and see this as a more practical alternative
to binding standards. The Commission will be aware that both ICAO
and ECAC are working towards the inclusion of good practice guidance
into their respective documentation on a number of immigration
issues. To avoid potential duplication of effort, we should take
full account of relevant work already underway in other international
Should more detailed preconditions for expulsion
decisions be set, and which elements should they comprise?
In addition to the groups mentioned above, which
groups require special protection against expulsion, and what
should it look like?
In the UK there are a number of criteria for
the revocation of a residence permit. These include where the
permit was obtained by fraud, where the holder commits serious
criminal offence or is considered a threat to public order/national
security, or where condition of issue ceases to apply (eg refugee
In terms of preconditions for expulsion decisions,
the Green Paper points out that Directive 2001/40/EC on the Mutual
Recognition of Decisions on the Expulsion of Third Country Nationals,
adopted in May 2001, already provides for standards in this area.
Although it is desirable to avoid inconsistency between Member
States on expulsion decisions, not least to avoid secondary movement,
consideration of further standards should only take place once
the effectiveness of this Directive has been assessed fully.
In enforcing expulsion decision, Member States
already take account of the need for special protection for vulnerable
groups. Special protection should continue to be considered on
a case by case and country by country basis. A blanket exemption
of particular groups from expulsion decision at EU level would
be inappropriate, though Member States should continue to keep
each other informed of changes in policy at national level.
Should binding standards on detention be established
and which alternatives to detention should be considered?
Which binding standards in terms of legal pre-conditions
and enforcement relating to detention pending removal should be
set at Community level?
In recent discussions in Council, Member States
have highlighted the need for further co-operation between Member
States and with third countries to effect returns. Member States
have not identified a need for developing common standards on
detention prior to removal.
In the UK there are currently three circumstances
in which a suspected immigration offender can be detained: pending
establishment of whether to grant leave to enter, pending removal
and pending deportation.
The establishment of binding standards on detention
(assuming these took the form of a time limit, place of detention,
regime etc) would severely damage the United Kingdom's ability
to implement removals effectively.
There are also important national security considerations
for Member States. The UK detains those we consider to be threats
to national security. This includes people who have entered despite
being excluded on national security grounds, or people who have
been identified by the intelligence services as risks to national
security who we have decided to deport, including suspected terrorists.
They are all detained pending removal, usually in maximum security
prisons. Those who we have decided to deport almost always appeal
and need to be detained pending the outcome of this process, both
because they are likely to abscond and because if allowed out
they would continue their activities.
In the UK, there are already safeguards against
arbitrary detention: anyone detained can apply for bail or, if
the lawfulness of detention is in dispute, for habeas corpus or
a declaration that their detention is unlawful. It would be unacceptable
to the UK if we had to release people whose removal was being
processed or who were recognised as a threat to our national security
because of an arbitrary deadline.
If the purpose of co-operation at EU level is
to facilitate safe and dignified returns, then Member States will
need to retain the flexibility to develop their own detention
policy in line with existing checks and balances and their own
judicial and administrative systems. Similarly, we consider it
would be inappropriate for the Commission to define the competence
of the responsible authority that authorises detention or to require
that detention must be authorised or confirmed by a judicial authority.
Judicial oversight of immigration detention in the UK is provided
by access to a number of different bodies which include the courts,
the immigration appeal authorities and the Special Immigration
The UK does not see the need for further standards
at EU level, whether in terms of duration of detention, type of
accommodation, or exclusion of certain categories of returnee
The UK already uses several alternatives to
(i) Temporary Admission. Temporary Release.
The (suspected) offender is required to reside at a specific address
and is required to report to an immigration officer on a specific
(ii) Temporary Admission/Temporary Release
with Reporting Restrictions. The (suspected) offender must reside
at a specific address and must report on a weekly/fortnightly/monthly
basis to a police station or immigration reporting centre.
(iii) Bail. Immigration legislation permits,
in certain circumstances, a person who has been detained to apply
for bail to either a chief immigration officer or an adjudicator.
Which groups should not or only under exceptional
circumstances be detained?
The following are normally considered suitable
for detention in only very exceptional circumstances:
unaccompanied children and persons
under the age of 18;
the elderly, especially where supervision
pregnant women, unless there is the
clear prospect of early removal and medical advice suggests no
question of confinement prior to this;
those suffering from serious medical
conditions or the mentally ill;
those where there is independent
evidence that they have been tortured; and
people with serious disabilities.
What accommodation standards should apply to detained
All removal centres in the UK must be run and
operated in compliance with the Detention Centre Rules 2001 (SI
2001/238) which make provision for the regulation and management
of removal centres. The Rules provide for the welfare of detainees
including clothing, food, accommodation and hygiene. In some cases
it will be necessary for reasons of control or security to hold
individual detainees in prison accommodation. Where this is the
case the individuals concerned will normally be held with remand
or other unconvicted prisoners.
Which time limits should be set to limit the maximum
duration of detention?
In the UK, immigration detention is open-ended,
though the reasons for detention are reviewed regularly in each
individual case and if release is considered appropriate then
the detainee will be released. The Government is committed to
speeding up the asylum process so that removals are effected rapidly
and time spent in detention is kept to a minimum. A maximum duration
for detention would lead to the setting of an arbitrary time limit
which might have no relevance to the circumstances of the individual
concerned and could potentially encourage individuals to prolong
and frustrate the process simply in order to reach a point where
they would be released.
Is it necessary to incorporate a final safeguard
for non-refoulement requirements in a future Directive on Minimum
Standards for Return Procedures?
The UK is not persuaded that a Directive represents
the most effective method of taking forward co-operation between
Member States on returns at this stage. In terms of non-refoulement,
obligations already exist under the 1951 Convention and all Member
States are bound by the European Convention on Human Rights. The
UK agrees that removals should be carried out in a safe, dignified
manner, in line with Member States' international obligations
and with due regard to the health and safety of the returnee.
Which standards should be considered relating
to the physical state and mental capacity of the returnees?
It is UK policy not to remove those who have
been declared medically unfit to travel, unless there are exceptional
circumstances. Nor do we remove those women who are in advanced
stages of pregnancy. Those with communicable diseases are not
removed and safeguards are also in place to protect individuals
suffering from mental heath problems.
Which standards should be defined as far as the
use of restraints or the competencies of escorts are concerned?
Within the UK, all overseas escorting at public
expense is carried out under contract. The contractor may use
reasonable force only where necessary to keep a detainee in custody,
to prevent violence and to prevent the destruction of property.
Reasonable force may include the application of mechanical restraints
where this is proportionate and is the minimum necessary to ensure
continued detention and safe removal. Training courses for escorts
are approved by the Government and are broadly in line with the
IATA/CAWG Guidelines on Deportation and Escort. These guidelines
could provide the basis for developing best practice on escorting
and use of restraint.
Should a common assessment take place regarding
removal to specific countries, where the actual situation makes
Member States invest significant resources in
gathering country information and avoid effecting removals to
unsafe countries. When deciding whether to carry out a removal,
both country conditions and the individual circumstances of the
returnee are taken into account. The UK believes that Member States
should continue to share information on country conditions and
removal policies with regard to specific third countries. Member
States have demonstrated that they can work together effectively
to respond to changing country conditions, as illustrated by the
proposals for joint voluntary returns programmes to Afghanistan
currently under consideration by the Commission. At the same time,
the decision on whether to remove to a third country should remain
within the competence of Member States.
Should a binding and comprehensive system of the
mutual recognition of return decisions be established which goes
beyond Directive 2001/40/EC?
There is a clear need to avoid potential returnees
moving between Member States to evade expulsion, though a binding
and comprehensive system is an ambitious goal which may merit
further discussion. Such a system would be potentially useful
in terms of increasing the number of returns, though there may
be difficulties with immediate enforcement of expulsion decisions
of other Member States without a fresh decision.
Which approach would ensure a fair solution for
possible financial imbalances which may result from the mutual
recognition of return decisions?
Member States are awaiting a proposal from the
Commission on this subject. The key principles in developing such
a system should be to ensure that returns are enforced promptly
by the Member State responsible whilst avoiding a bureaucratic
approach to addressing financial imbalances. It would probably
need to be predicated on a common European asylum system.
Should a mechanism be incorporated in a future
proposal on return procedures, as to how the exit of the returnee
can be proved and rules on the legal consequences of applications
for re-entry to the EU?
Member States should be relied on to verify
that the returnee has departed through their own administrative
systems. It would be impractical for embassies of EU Member States
to keep track on returnees in their country of origin: this would
be resource intensive and in some cases could draw unwelcome attention
to returnees once they had arrived back in their country of origin.
Where incentives are provided to returnees, one option for encouraging
the returnee to remain in the country of origin would be to provide
post-return incentives or allowances over a period of time rather
than in a lump sum on arrival. Payment could be linked to biometric
data, to ensure that the recipient was indeed the returnee.
Applications for subsequent re-entry to an EU
Member State should be considered on their individual merit. Voluntary
return should not in itself "destigmatise previous illegal
residence" and former illegal residents should clearly not
be given preferential treatment in subsequent applications to
enter a Member State.
Should the prerequisites for the notification
in the refusal of entry list of the Schengen Information System
be defined? What categories should be covered?
The UK does not have access to immigration data
on the Schengen Information System
Should a legal framework for readmission among
Member States concerning all illegal residents be put in place?
The UK would support further discussion on the
potential for establishing a mechanism for determining obligations
between Member States for readmission of all third country nationals.
Which proposals on transit issues during return
procedures should be put forward, taking current discussions in
the Council duly into account?
Direct, non-stop flights should be used to effect
returns to third countries wherever possible. The requesting state
should be able to justify the need for a transit route and where
a direct route is not an option, Member States should co-operate
to ensure that transit through another Member State as part of
the return process is secure and does not lead to further asylum
claims or absconding en route.
Any proposals to develop co-operation on transit
should ensure that Member States which host major airport hubs
do not suffer any detriment as a result. Assistance with transit
is likely to be a resource intensive process and any proposal
on transit should take this into account. The Member States could
with advantage act together in negotiating transit routes through
How could operational co-operation at technical
level be improved?
How could the basis for information on return
be further improved?
The UK strongly supports operational co-operation
between Member States and with third countries to support enforcement
of returns. The Seville European Council agreed to take forward
work on an action programme on returns. Such a programme should
focus on increasing the number of returns carried out by Member
States, including the possibility of joint return programmes to
key third countries. The High Level Working group programme of
joint voluntary returns programme to Afghanistan is a good example
of how Member States can work together effectively on an issue
of common interest, and the UK looks forward to early implementation
of this programme.
A range of other models for joint working should
also be considered and co-operation should be flexible enough
to allow groups of Member States to work together on projects
of common interest, whether in relation to returns to particular
third countries or on thematic issues such as identification and
documentation. Co-operation with key third countries should also
be taken forward as a priority. The UK welcomes the Commission's
forthcoming study of funding streams for migration and asylum
initiatives, as proposed at Seville, and looks forward to this
as a means of clarifying existing funding streams and identifying
any gaps in provision. It would also be useful for member states
to share information on any successes they have had in unblocking
removals difficulties with key third countries. However, in line
with the priorities expressed by Member States at recent meetings
of the Expulsions Working Group, the focus of a returns programme
at EU level should be on increasing operational co-operation rather
than developing new structures or standards. Wherever possible,
existing mechanisms for information sharing should be used and
duplication should be avoided.
How could the identification of undocumented illegal
residents and the issuance of return travel documents be improved?
Member States have highlighted identification
and documentation as key barriers to returning illegal residents
to a number of key source countries. Effective co-operation with
source countries is essential if we are to unblock these barriers
and the Seville European Council gave a clear message that the
EU expects appropriate assistance from the countries in question.
In line with the Seville Conclusions, the EU
should reinforce this message at every available opportunity as
part of its wider relations with third countries. The UK welcomes
the initiative of the Danish EU Presidency in starting a broad-based
discussion on criteria for identifying third countries where further
co-operation is required, as set out at Seville, and we also look
forward to discussions on a migration co-operation clause to be
included in future association or co-operation agreements.
In terms of improving the level of operational
co-operation from third countries, wider acceptance of EU travel
letters by third countries is an immediate priority. The UK is
less convinced of the urgent need to use EU letters for two-way
travel (for explore and prepare visits). As envisaged in the Green
Paper, this would require further security measures (such as the
use of biometric data) for the return leg of the journey to verify
that the person presenting the letter was the person to whom it
had been issued.
Furthermore, the ICAO has developed an international
standard requiring Contracting States to accept a covering Chicago
Convention Document which should be used to assist the removal
in certain circumstances of inadmissible passengers who arrived
with fraudulent, falsified or counterfeit travel documents or
had no document or were imposters.
The EU should also push for wider acceptance
of the ICAO Chicago Convention Document, which should be implemented
by all 187 Contracting States, although as in the case of the
EU travel letter we are aware of a number of exceptions. The ICAO
Secretariat has already indicated an intention to raise the profile
of the acceptance of this document amongst ICAO states and the
EU should play an active role in supporting this.
What elements should be included in the future
European Visa Identification System to ensure identification of
an undocumented legal resident?
The UK fully supports the objectives of the
EU Visa Database and looks forward to the forthcoming feasibility
study. We consider that a database could provide an extremely
useful tool for exchange of immigration information to assist
in the fight against terrorism and organised crime.
A database would assist in the identification
and documentation of undocumented illegal persons and simplify
administrative procedures for returning citizens of third countries.
The inclusion of biometric data would clearly assist in this process.
The database would also contribute to the prevention of "visa
shopping", to improving the administration of the common
visa policy and towards internal security.
A decision on UK participation in the visa database
will depend on the outcome of the feasibility study and the proposal
put forward in due course. The Commission is aware that the UK
has a recently commissioned a database of its own and is keen
to co-operate in the development of a database at EU level. It
would be helpful if the model chosen were compatible with the
existing UK database.
Could the member states offer and provide mutual
assistance in facilitating returns?
The UK fully supports the need for Member States
to work together to facilitate returns. Airline Liaison Officers
(ALOs) may in some cases be able to provide limited assistance
in facilitating returns, though involvement in administering individual
cases should be kept to a minimum to allow ALO's to focus on their
main objectives. The UK does not accept the proposal to extend
the role of Immigration Liaison Officers to include assistance
on facilitating returns. We consider this to be incompatible with
How could the exchange of best practice be improved?
Should the idea of joint training be developed
in the area of return?
The UK considers that Member States should offer
mutual assistance wherever possible to support operational co-operation,
especially where individual Member States have already overcome
obstacles to removal to third countries. Member States should
keep in touch with each other on significant policy changes and
let other Member States know of any plans for large-scale returns
to third countries. It is important for Member States to be aware
of what others are doing, especially where the infrastructure
or administrative capacity of key third countries is limited.
Joint training could offer an effective means
of helping disseminate best practice between Member States. Discussions
are already underway to take forward proposals for a joint core
curriculum for boarder guard training. It could be constructive
to draw key lessons from this exercise before evaluating whether
joint training is necessary to support returns.
Can you give a general assessment of existing
The UK's experience of voluntary returns programmes
has been positive. Since it began as a pilot in February 1999
the UK's Voluntary Assisted Returns Programme (VARP) has achieved
2,233 returns (to the end of June 2002). VARP is operated for
the UK Government by the IOM in conjunction with Refugee Action,
a UK non-governmental organisation, and is open to pending and
failed asylum seekers as well as to those with temporary protection.
While some 80 per cent of returns have been to three countriesAlbania,
FRY (Kosovo) and Iran, the programme has successfully returned
people to well over 60 different countries. As we have already
stated, voluntary returns programmes must be underpinned by a
realistic prospect of enforced return in order to maximise their
There is a clear need to learn the lessons of
recent and existing return programmes to countries such as Kosovo
and Afghanistan. It is encouraging that Member States have reached
agreement in the High Level Working Group on Migration and Asylum
(HLWG) on a joint voluntary returns programme to Afghanistan.
This highlights the need to co-operate on the levels and types
of re-integration packages to discourage shopping around for the
best package and could provide a model for future programmes at
The EU should also encourage co-ordination of
agencies (UNHCR/IOM/international NGOs) operating within return
programmes to ensure consistent country information, avoid duplication
of activities and effectively manage resources available for return
to ensure value for money. We should also consider the impact
of return programmes on the country of origin and focus on maximising
The UK believes that systems such as the ICMPD
Information Exchange System (IES) currently operating in Kosovo
(and, with HLWG funding, shortly to be extended to Sri Lanka,
with feasibility studies conducted in respect of further extension
to Afghanistan and northern Iraq), have the benefit of producing
detailed case-specific country of origin information that can
accurately inform decisions on the safety of returns in individual
cases. The UK would welcome further development of IES or similar
systems as a common tool for use by all Member States and funded
through the HLWG.
Which elements should be included to ensure better
implementation of return programmes?
The UK agrees with the need to maximise sustainable
returns. The EU should consider how best to achieve this through
better design of return programmes, joint working and the negotiation
of, for example, redocumentation arrangements and third country
transit routes, and tailoring assistance to conditions in countries
of origin. In this respect, we welcome the discussion on migration
and development initiated during the 2002 Spanish EU Presidency
and look forward to continuing this debate during the Danish Presidency.
Is the creation of an independent European Return
Should such a programme cover voluntary return,
forced return and assistance to third countries in their efforts
to return persons to countries of origin?
Member States agreed the need to have the components
of a repatriation programme agreed by the end of 2002. This should
include forced and voluntary return and offer broad-based support
to Member States to facilitate higher levels of return, including
by developing co-operation with third countries. Consideration
should also be given to supporting interception returns from third
countries on key routes into the EU.
Should additional criteria for assessment of future
target countries be taken into account?
The UK agrees with the proposed criteria, though
assessment should also take account of the level of existing co-operation
from third countries on returns and migration and asylum more
generally, including border controls, false documentation, identification,
documentation and permission to transit.
How could the complementarity and coherence between
the various Community policies be further enhanced?
The UK supports Seville Conclusions and proposals
to integrate migration and asylum more effectively into EU relations
with third countries and we look forward to early conclusion of
a migration co-operation clause for inclusion in new agreements
between EU and third countries. At the same time, we should actively
seek opportunities to raise migration issues with third countries
(including through visits by Commissioners and senior officials
to third countries) and to raise awareness internally within the
Commission and national administration. The EU should continue
to negotiate readmission agreements with key third countries and
Member States should be given the opportunity to feed in their
expertise to this process.
What alternative concepts for repatriation could
be assessed in dialogue with other third countries?
The UK agrees the need to engage with third
countries on transit issues. Resettlement in third countries is
also a possibility as an addition to, but not as a substitute
for, a sustainable returns policy.
Letter from J A Fortescue, Directorate-General
Justice and Home Affairs, European Commission to the Chairman
I must apologise for not replying earlier to
your welcome and thoughtful letter of 17 July 2002 regarding the
Commission's Green Paper on a Community return policy on illegal
residents. I fear it arrived during my absence on holiday and
it was only belatedly that it was drawn to my attention. Following
a hearing held on the subject in July it will now be further refined
and transformed into a formal Commission Communication to Parliament
and Council. Thus, your comments arrived at a timely moment when
the Commission was in the process of considering the next steps.
Since you helpfully express support for the
general thrust of the Green Paper, I will limit my comments to
the two points on which you have laid particular emphasis: the
mutual recognition of return decisions; and the problem of leverage
while negotiating readmission agreements.
On the first point, I agree that a mechanism
for the mutual recognition of return decisions going beyond the
Directive 40/2001 must be seen as the key factor for effective
operational co-operation among Member States. Return should be
understood as being successful only if the illegal resident concerned
has left the territory of the EU and not just one Member State.
The preferred option is sustainable return to the country of origin
as directly as possible. The continuation of illegal residence
in another Member State is an unsatisfactory alternative, even
if, at present, it occurs in practice.
Secondly, as far as readmission agreements with
third countries are concerned, I agree with you that "leverage"
does not mean onlyor even primarilysticks rather
than carrots. In this context, you will have seen that the language
of the Seville European Council is relatively neutral on this
point. We need to recognise, however, that the best chance of
obtaining readmission agreements is to set them in the wider context
of the EU's relations with the countries concerned.
Again, I would like to thank you for your helpful
remarks. We have had a good response and useful comments from
a number of organisations concerned about this subject and all
these will prove extremely useful during the next stage of our
26 September 2002
Letter from the Chairman to the Lord Filkin
CBE, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 29 July, which
Sub-Committee F (Social Affairs, Education and Home Affairs) considered
at its meeting on 30 October.
The Committee was grateful for your helpful
response, much of which is close to its own thinking. It particularly
welcomes the proposal to encourage voluntary returns by providing
reintegration support. The Committee notes what you say about
existing arrangements for returning non-EU nationals to other
Member States, but remains of the view that there is scope for
more returns direct to countries of origin. However, there will
no doubt be further opportunities to pursue this issue in the
context of the Commission's recent Communication on a Community
As the Green Paper has been superseded by the
Communication, the Committee has cleared it from scrutiny and
looks forward to receiving the Government's explanatory memorandum
on the Communication.
31 October 2002
Letter from the Chairman to Lord Filkin,
Sub-Committee F (Social Affairs, Education and
Home Affairs) of the European Union Select Committee considered
this Communication at a meeting on 11 December 2002. We were grateful
for your detailed and informative Explanatory Memorandum.
The Committee broadly welcomes the Communication,
which like the preceding Green Paper combines measures to improve
the expeditious removal of illegal residents with a clear recognition
of the need to observe human rights obligations and of the importance
of working closely with countries of origin and transit. The Commission's
balanced approach is very much in line with that adopted by the
Committee in its recent report on a Common Policy on Illegal Immigration.
We also strongly endorse the priority that the Commission attaches
to encouraging voluntary returns and to developing incentives
for voluntary returnees.
We note that the Government does not see the
creation of a legal framework as a priority for EU returns policy
at this stage. We agree that in the short term the priority is
to develop practical operational co-operation in terms of information
exchange, joint training, joint operations etc. But in the longer
term we believe that a legal framework, as proposed in the Communication,
will be required if a truly common policy is to be developed.
On more specific points our comments follow.
Extending the role of immigration liaison officers
We sympathise with the Government's view that
extending the role of ILOs to include assistance on facilitating
returns would be incompatible with their remit. The Government
suggests that airline liaison officers (ALOs) might be able to
offer some limited assistance in this area. We would find it helpful
in considering this aspect of the proposal to have a clear description
of the relative responsibilities of ILOs and ALOs.
Mutual recognition of return decisions
This is clearly a particularly significant proposal.
As you know from our comments on the Green Paper, we believe that
it is important that Member States should take responsibility
for removing illegal residents to their country of origin rather
than shuffling them around the Member States. Mutual recognition
would clearly be an important ingredient in such an approach,
and we would be grateful for a more detailed account of how you
see it working in practice. Is it envisaged, for example, that
a Member State would be required to remove a person subject to
an expulsion decision by another Member State? Would a Member
State be precluded from sending a person back to the Member State
that had made the expulsion decision? What is the Government's
view on how possible financial imbalances should be addressed?
Finally, the Committee strongly endorses the
Communication's emphasis on developing incentives for third countries
to sign up to readmission agreements. As we made clear in our
report on illegal immigration, we believe that positive incentives
are much more likely to be effective than threats of withdrawing
financial assistance or development aid. The Communication suggests
that there are few positive incentives to offer in the JHA field.
A point that was put to us in evidence in our recent inquiry was
that the single most important ingredient in successful recent
readmission agreements had been the inclusion of some provision
for legal migration from the country concerned. We would be interested
in your views on this.
In the meantime the Committee will hold the
Communication under scrutiny.
11 December 2002
Letter from Lord Filkin, Parliamentary
Under Secretary of State to the Chairman
Thank you for your letter of 11 December in
response to my Explanatory Memorandum.
I am greatly encouraged by the Committee's support
for a balanced policy on returns at Community level. This, as
you know, is the approach that the Government has taken in our
discussions with EU partners. In response to the further clarification
you are seeking on aspects of returns policy, I note that these
issues also feature in the report of Sub-Committee F's Inquiry
into a Common Policy on Illegal Migration. We will be responding
to the report by the end of this month, in line with the usual
two-month deadline, though in the meantime I am happy to provide
the further information you requested.
I should also like to take this opportunity
to inform the Committee of further developments since the Explanatory
Memorandum was issued. The Danish EU Presidency drafted a Return
Action Programme, based on the Commission Green Paper and Communication,
to set priorities for co-operation between Member States. The
Returns Action Programme was adopted at the end of November, and
I enclose a copy of the document as adopted. The Greek EU Presidency
will be taking forward the short-term action points set out in
the attached document.
In terms of the clarification you have requested,
the Government made it clear in our response to the Green Paper
that we did not accept the proposal to extend the role of Immigration
Liaison Officers (ILOs) to include assistance on facilitating
returns, as this is incompatible with their remit. As you point
out, the role of ILOs and Airline Liaison Officers (ALOs) is quite
distinct. ILOs work with the authorities in key source and transit
countries to gather intelligence on illegal immigration networks,
including people smugglers and traffickers, with a view to disrupting
and frustrating organised immigration crime. We are already working
with our EU partners to develop co-operation with ILOs from other
Member States, including sharing intelligence on key trafficking
and smuggling networks. Given the extremely sensitive nature of
their work, ILOs act on a semi-covert basis. Clearly, it would
be inappropriate for them to become involved with the highly visible
implementation of returns, which would also provide an unhelpful
distraction from their key role of disrupting organised illegal
ALOs have an equally clear remit to work in
partnership with the airlines in providing formal training for
airline staff on UK passport and visa requirements as well as
forgery awareness. Such training is supplemented by regular attendance
at flight departures to provide on the spot advice and ready accessibility
by telephone at other times. ALOs have a brief to respond positively
to port requests for assistance with arrangements for removals,
including acceptance on arrival of sensitive removals. This is,
however, a limited role that is used sparingly by the ports and
without detriment to the ALOs' key objective, which is to tackle
illegal migration at source and in transit. In line with our focus
on preventing illegal migration, it would be counter-productive
if our ALOs were diverted from key tasks to focus on assisting
with returns and we would urge a degree of caution against any
move to extend the limited role of ALOs in this area.
In terms of mutual recognition of return decisions,
Directive 2001/40/EC provides for a system of mutual recognition
of decisions. There may be instances where because of a change
of circumstances we do not consider it appropriate to seek to
enforce the decision. Similarly, while the Government agrees that
it is undesirable for Member States to pass returnees between
themselves, rather than seeking to enforce return direct to the
country of origin, there may be cases where it is decided to return
the subject to the Member State which made the original order
because removal to the country of nationality is not practicable.
The issue of financial compensation for carrying
out expulsion decisions is still to be resolved. The Government's
view is that a clear mechanism is required if we are to achieve
our objective of facilitating larger numbers of returns direct
to countries of origin. This means developing a formula which
takes account of the true cost of carrying out expulsion on behalf
of another Member State (including any detention, transport and
administrative costs), but which will be reasonably straightforward
to administer. The Commission is grappling with this issue at
the moment, and we look forward to seeing their proposal as soon
as possible. Of course, none of this detracts from the responsibility
of each Member State to ensure that it carries out its own expulsion
decisions as effectively as possible, and in this respect a system
of mutual recognition of expulsion decisions envisaged by the
Directive is to some extent a secondary option.
Finally, turning to readmission agreements,
these are a further element of our overall approach towards intensifying
co-operation with third counties. As you suggest, readmission
agreements should be taken forward as part of the wider context
of co-operation, which includes a balanced approach to legal and
illegal migration. We are developing a range of managed migration
programmes, though in terms of direct links between readmission
agreements and other incentives, we would urge caution.
Readmission agreements set out administrative
and operational mechanisms to enable third countries to fulfil
their obligations on readmission. We should take care not to link
further incentives directly to co-operation on readmission. To
do so would send the wrong message to source and transit countriesviz.
that co-operation on readmission was a bargaining chip rather
than an international obligationand in the longer term
would probably represent an obstacle to co-operation on readmission.
This is the approach agreed by Member States in the Returns Action
Programme (paragraph 64), though this does not mean that we should
not be prepared to provide the necessary assistance to enable
third countries to fulfil their readmission obligations. The Returns
Action Plan provides for a discussion on this in due course.
16 January 2003
Letter from the Chairman to The Lord Filkin,
CBE, Under-Secretary of State, Home Office
Thank you for your letter of 16 January, which
Sub-Committee F (Social Affairs, Education and Home Affairs) of
the Select Committee on the European Union considered at a meeting
on 12 February.
We were very grateful for the helpful response
to the points we raised and for enclosing a copy of the Return
Action Programme adopted by the Council.
On readmission agreements we note your caution
about tying them too closely to positive incentives. This is an
issue on which we probably retain a somewhat different perspective
from the Government, but there will no doubt be further opportunities
to consider this important issue, notably in the context of the
Commission's Communication on integrating migration issues in
the European Union's relations with Third Countries, which has
recently been deposited.
The Committee has cleared the document from
14 February 2003