Select Committee on European Union Forty-Ninth Report


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 views—there 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 countries.

  Two issues were of particular interest to the Committee:

    (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 effective—and cost-effective—than 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 returns.

  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 programmes—documentation 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

GENERAL COMMENTS

  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.


DEFINITION

  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.

  Return—Genus 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 forced.

  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 resident—Any 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 European Union.

  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 return—the 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 return—The return to the country of origin or transit with the threat with and/or the use of coercive measures.

  Compliant forced return—forced return to the country of origin or transit with the threat and minor use of coercive measures such as escorts.

  Non-compliant forced return—forced return with the major use of coercive measures, such as restraints.

  It is suggested that only one definition is required—that of (en)forced return.

  Enforced return—the compulsory return to the country of origin, transit or third country, irrespective of the wishes of the returnee.

  Readmission—decision by a receiving State on the re-entry of an individual. Agree with this definition.

  Readmission agreement—Agreement 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 suggested—Agreement 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.

  Repatriation—Return to the country of origin, in both voluntary or forced situations.

  Broadly agree with this definition.

  Expulsion—administrative 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 order—Administrative or judicial decision to lay the basis for the expulsion.

  Please see the comment above.

  Detention—Act of enforcement, deprivation of personal liberty for law enforcement purposes within a closed facility.

  Agree with this definition.

  Detention order—Administrative or judicial decision to lay the basis for the detention.

  Agree with this definition.

  Removal—Act 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 order—Administrative 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-entry—New 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".

  Rejection—Refusal of (legal) entry at a border post.

  Suggest changing the term "rejection" to "refusal".

  Transit—Sojourn 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 BROADER CONTEXT OF RETURN

  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 fora.

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 cessation clause).

  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 Appeals Commission.

  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 from detention.

  The UK already uses several alternatives to detention:

    (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 date.

    (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 is required;

    —  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 returnees?

  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 removals questionable?

  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 third countries.

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 their remit.

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 return programmes?

  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 countries—Albania, 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 effectiveness.

  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 EU level.

  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 sustainable returns.

  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 Programme advisable?

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 only—or even primarily—sticks 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 reflection.

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 return policy.

  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, CBE

  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 (ILOs)

  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?

Readmission agreements

  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 immigration networks.

  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 countries—viz. that co-operation on readmission was a bargaining chip rather than an international obligation—and 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 scrutiny.

14 February 2003


 
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