Statewatch submission on the:
European Commission Green Paper on Return (COM (2002) 175, 10 April 2002)
Part I: General considerations
It is unfortunate that the Council (the 15 EU governments) took steps on one of the key issues in this Green Paper, identifying criteria for new readmission agreements and deciding on four new countries to negotiate with, only two weeks after release of the paper. Although the Commission cannot be criticised for the behaviour of the Council, this decision by the Council had the unfortunate effect of making the Commission's welcome efforts to consult fully and widely on the issue of return appear to some extent to be a sham. This attitude by the Council is sadly in keeping with its problematic reaction to the European Parliament's democratic scrutiny of European Parliament proposals, ignoring the huge EP vote against the proposed measures on carrier sanctions, expulsion decisions and facilitation of illegal entry and residence.
It might have been hoped that the Council for once would be interested in the result of public feedback and parliamentary opinion on proposed EC policy on irregular migration. In fact, the Danish Presidency presented, on 11 July, a draft Action Plan to implement the Green Paper, before any significant consultation had taken place (Council doc. 10895/02)
As regards the scope of the Green Paper, the exclusion of legal migration is welcome. There is no indication of a need for any form of voluntary return system for legal migrants at Community level. Such a system would raise grave doubts about the Community's expressed goals of combating racism and social exclusion, by suggesting that despite their legal residence, there are persons who nevertheless do not 'belong' in the EU. Additionally, there is no legal base in the EC Treaty for the Community to adopt measures concerning the return of legal residents.
In section 2.2, the Commission mentions that regularisation programmes have a part to play as regards irregular migration and meet certain needs. But this important issue is not subsequently mentioned further in the Green Paper. Why not ask questions about the usefulness of a Community approach to regularisation along with the other questions set in the Green Paper? Could the application of regularisation programmes be subject to the system of 'open coordination'? Or is the Commission hinting that the existence of regularisation programmes is a consequence of the failure of national return policies? Could it not be asked instead whether the existence of regularisation programmes is instead, or also partly, a consequence of an overly restrictive national policy on legal migration?
The discussion in section 2.4 does not mention the right to human dignity, as protected in some national constitutions, the EU Charter of Fundamental Rights and the general principles of Community law (Cases C-13/94 and C-377/98). This right could be relevant to the status and detention and return conditions of irregular migrants.
Section 2.5 mentions the idea of 'forms of support' to accompany readmission. It is striking that the Council's Action Plan dropped any reference to aid alongside readmission, as noted in the attached Statewatch briefing.
Part II: Harmonisation of law
The discussion of common standards in s. 3.1 says nothing about the legal status of persons while awaiting removal, as regards access to employment and benefits. In particular, it says nothing about the obligation to arrange for some form of regular status after a lengthy period during which removal is practically or legally impossible. An ongoing legal limbo of that kind without any significant clarification of the migrant's legal status is arguably a breach of Article 3 ECHR and the right to human dignity.
Question: point 3.1.1
The Green Paper should more clearly build into the definition of 'illegal resident' the limitation that a person cannot be considered an 'illegal resident' liable for return until all potential arguments a migrant could wish to make against removal, particularly those based on human rights and humanitarian grounds, have been rejected following a fair, comprehensive and effective administrative and judicial procedure. The suspensive effect of such a review against any removals is a vital safeguard.
It is not appropriate to put in place mechanisms ensuring that irregular residence in one Member State must mean lack of regular residence in all Member States, as long as there are no Community rules at all on entry and residence of legal migrants into the EU. More particularly, there should logically also be a corresponding principle for legal residents of the EU, even for long-term residents, ensuring that legal residence and status can be transferred from one Member State to another.
The Commission's outline of the grounds for applying expulsion measures fails to mention several elements of Directive 2001/40 on mutual recognition of expulsion decisions: the exclusion of family members of EU citizens, the limitation of scope as regards cases covered by the Dublin Convention, the obligation for the second Member State to ensure human rights protection, and the requirement to provide for a procedure to object to expulsion in the second Member State. None of these safeguards should be weakened in an expulsion directive; in fact there are strong arguments to strengthen these elements.
The grounds for expulsion in Directive 2001/40 are questionable, as they are taken from Article 96 of the Schengen Convention, which largely applies to a ban on entry into the Schengen territory or refusal to issue a visa. It is arguable that the threshold for expelling a person from a territory should be higher than the threshold for refusing entry to that territory, at least where the would-be entrant lacks an existing link with the territory (as a prior resident, for instance) or a protection need there. So any grounds for mandatory expulsion set out in an expulsion directive should be higher than those applying in Directive 2001/40, limited to cases of conviction for a lengthy criminal sentence and (with procedural protection) serious threats to national security in the absence of such a conviction. Directive 2001/40 should be amended to correspond with this. It should be specified that these mandatory grounds are exhaustive.
As for the groups with special protection, family members of migrant EU citizens cannot be regulated by a Title IV measure, and must therefore only be regulated by the rules applicable to migrant EU citizens, which would be strengthened considerably by the Commission's proposed Directive on the rights of EU citizens and their family members. The protection currently provided for in EC law and proposed within the future Directive should not be weakened and cannot be weakened by a Title IV act. Also, the earlier versions of the proposed Directive on family reunion would have extended this protection to the family members of nationals of a Member State who have not moved within the EU, and the Commission has indicated that it intends to revive this proposal. So both categories of family member of EU nationals must be excluded from the scope of any future Directive.
Also, EEA and Swiss citizens and their family members must be excluded because of the Community agreements with those countries guaranteeing free movement of persons. Any persons with protection under other treaties agreed by the Community (with Turkey and Central & Eastern Europe, for instance) or by the Member States must also have the benefit of any higher protection extended by those treaties.
The Commission's definition of long-term residents only covers such persons as defined by a proposed Community directive; this concept should also include any more generous national definition of long-term residents, as such a definition could still apply, as expressly specified in this proposed Directive.
For refugees and persons with international protection, the Commission makes the disturbing suggestion that "such persons may only be removed for grave reasons of public security and public order". In fact, it is clear from judgments of the European Court of Human Rights such as Chahal v UK and Ahmed v Austria that the protection against expulsion to a state presenting a real risk of treatment prohibited by Article 3 ECHR is absolute. Unless the Commission meant only to refer to the possibility of removal of such persons to safe states (in which case it should have clarified its meaning), the Communication shows an unfortunate ignorance of, or an illicit attempt to overturn, a firmly established and well-known principle of human rights law. Obviously any future Directive that purported to limit its scope in the way that the Commission suggests would be manifestly illegal for breach of the human rights protected by the general principles of Community law. It would also clearly be breaching the EU Charter of Fundamental Rights. Moreover, there is a strong argument that the Commission and Council would be liable for damages if they adopted legislation entailing such an obvious and grave breach of such principles.
The special protection suggested for persons born in a Member State should also apply to those who have lived there from a young age, on the grounds that in that case the Member State of residence is fundamentally responsible for their upbringing.
Also the Commission makes no reference to proposed protection against expulsion in its proposed Directives on family reunion and migration for employment or self-employment. Any higher protection agreed by these Directives should also be protected from the effect of any general directive on grounds for expulsion. In fact, since it seems likely that illegal immigration measures will be adopted by qualified majority vote from 1 May 2004 while legal migration measures will not be, it is particularly important to guarantee that a qualified majority vote does not undermine the protection agreed unanimously.
Any directive dealing with this subject has to be limited by a specific reference to established family and private life in accordance with the case law on Article 8 ECHR, not just to the vague test of 'hardship' referred to by the Commission.
More broadly, it is questionable whether work should proceed in these areas without prior agreement on proposals concerning legal migration and protection, particularly subsidiary protection. Otherwise there is a risk of agreeing a fait accompli as regards grounds for expulsion by means of discussions in the Council working group on expulsion, made up of specialists on the technical aspects of removal whose jobs are not directly connected with the importance of securing high standards for legal migrants and persons with protection needs. Also the procedural protection for expulsion of rejected asylum-seekers and persons seeking other protection is inevitably closely connected with the procedures for examining an application.
The discussion of the pre-conditions for ending legal residence in s. 18.104.22.168 takes no account of persons who apply for extension of legal residence and are still waiting for a decision from the national authorities--which often do not process such applications expeditiously. It would be preferable to set out the grounds for application of this principle exhaustively and precisely; the idea of losing residence status on the vague ground of 'other reasons of indispensable administrative orderliness' as set out by the Commission is not acceptable.
More broadly, the Commission does not mention that human rights protections and other restrictions against expulsion for specified groups of persons should equally apply to the conditions for ending legal residence listed here. In fact, where human rights are at issue, the grounds for removing residence status in the legislation must be precise enough to satisfy the 'prescribed by law' requirement which any measure restricting human rights must meet (where the right in question is not absolute).
A suspensive effect against a removal order in all cases, not just the migration cases, would be essential, as suggested by the Court of Human Rights in the recent judgments in Conka v Belgium and Jabari v Turkey.
Furthermore, any Community act on expulsion must make reference to the ban on collective expulsion set out in several international instruments and the EU Charter of Fundamental Rights, plus the case law of the Human Rights Court on this concept.
Any Community measure on detention (and alternatives to detention) must be based on the highest standards applicable in Member States and expressly apply in accordance with the case law of the European Court of Human Rights on detention. It should provide for a strict time-limit on the total length of detention, giving the authorities a fixed period to arrange for the safe return of the person concerned (assuming that all challenges to removal have been dismissed). If return has not been arranged at the end of that time, the person must be released; and if it seems likely that return cannot be arranged for a considerable and indefinite period, EC legislation should prescribe an obligation for Member States to regularise the status of the person concerned.
Exemptions from detention should also be based on the best practice of Member States.
As for removal, again any Community measure must be based on the highest standards applicable in Member States. A final safeguard against deportation to a particular state, on grounds of health of family considerations or as regards conditions of removal must be provided for, or there is a risk of breach of Article 3 ECHR or the right to human dignity. Such a safeguard must logically have suspensive effect. Any common assessment of the safety of countries should also be subject to challenge and regular review, and agreed transparently so that groups or legal advisers with evidence that a particular state is unsafe can submit that evidence before the decision is taken.
As for mutual recognition, Directive 2001/40 is already questionable in light of the differences in national law. There should be no further steps on mutual recognition in the absence of harmonisation on this matter, and on protection issues, at the highest standards prevailing in Member States. In any event, the decision to remove someone from the second Member State should always be subject to a review on human rights and other grounds, in particular because the situation of the irregular migrant or the country in which he or she will be returned to may have changed since the prior decision was taken.
Any rules regarding proof of exit must be subject to data protection safeguards. Restrictions on new applications for entry or visas are questionable where human rights or protection needs are concerned. As for the Schengen Information System, the grounds and procedure for listing someone as inadmissible pursuant to Article 96 of the Schengen Convention need to be reviewed to increase procedural fairness and secure human rights guarantees, as set out in a Justice report on the Schengen Information System (SIS) and ILPA/MPG proposals for a Directive on EU border control.
In any event, no penalties regarding new applications following any form of prior illegal entry or residence can be imposed upon persons from Europe Agreement countries who subsequently apply to enter and set up businesses, according to the case law of the Court of Justice. This rule will apply to persons from the Western Balkans once the Stabilisation Agreement countries with those countries are ratified (after a subsequent transitional period).
As for readmission among Member States, any rules should not apply to 'all' illegal residents. In particular, they should not apply to persons with an established or possible protection need, as long as there is still no harmonisation of these matters at the highest standard applicable in the Member States. However, in other cases, readmission between Member States may be preferable to removal to third states, particularly because a particular Member State may be in the best position to examine a person's situation before any order expelling that person from the entire EU. But as with the Dublin Convention, any criteria that takes little or no account of differences in human rights standards between Member States or the migrant's intentions and interests could well be infeasible in practice.
Any rules on readmission among Member States should also be subject to the same procedural guarantees as regards challenges, detention and transit conditions and other matters as are other removals.
Any rules on transit should take as a basis the highest standards currently applicable in a Member State of the EU.
As for operational cooperation, it is important to ensure that any agency established is subject to effective judicial and political supervision.
Figures 'shared between Member States' should be publicly available, to allow for public scrutiny of the scale of the issue.
Any visa identification system should be subject to full guarantees for data protection, as regards matters such as access, correction and deletion of the data.
Immigration liaison officers have apparently in practice played a role in preventing the movement of asylum-seekers (ie, UK officers in the Czech Republic). any Community measure must specify expressly that they are prohibited from engaging in such behaviour.
Any information exchange on concrete measures should also be made publicly accessible, subject to data protection rules.
As for return programmes, the details set out by the Commission are rather vague. No statistics or independent review is referred to. It is questionable whether the Commission's experience could easily be transposed to forced return as well as non-asylum situations. For the reasons set out above, a European Return Programme could not cover voluntary return of legal migrants, in the absence of Community powers to address this issue.
Part III: Readmission agreements
It is unfortunate, for the reasons set out in the main text, that human rights protection does not seem to be a criterion for agreeing a readmission agreement. There is no cross-reference to the test for assessing 'safe third countries' in the proposed Directive on asylum procedures (in any event, this test should be improved). Also, the test of 'immigration pressure on the EU' does not take account of possible authorised or desirable migration flows.
As for complementarity with other external policies, it is not clear whether the Commission envisions a positive or negative connection. Would there be more aid or trade concessions, or rather a reduction in existing benefits or concessions? There could be difficulties applying these policies in practice, as the economy in any third state denied extra EU benefits or facing EU penalties because of its failure to cooperate might suffer as a result, causing greater migration flows. Similarly those states not presently a source of migration flows, and therefore not eligible for any extra benefits or concessions, could suffer by comparison with those states which are a source of flows and receive extra benefits for cooperating; as a result the former could ultimately become a source of migration flows as their economy deteriorated.
As for transit through third countries, like transit through EU Member States, identical high standards regarding the personal safety and dignity of persons must apply.
Any removal to a third state other than the country of origin willing to admit an irregular migrant should only take place following an initial and ongoing assessment of the human rights situation in that country, in particular as regards whether that state would fully guarantee non-refoulement for any person sent there. Also the particular situation of the person should be sent there must also be examined.
European Commission Green Paper on Return (COM (2002) 175, 10 April 2002): Green paper (pdf)
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