28 March 2012
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Statewatch
  report and analysis
  EU: safe and dignified, voluntary or forced
  repatriation to safe third countries 
  
The European Union's policy on repatriating rejected asylum-seekers and "illegal" residents is now openly based on "voluntary" and "forced" repatriation to be carried out in a "safe and dignified" manner.
This is to be backed up by two other moves. First, the Declaration
  that asylum-seekers from the ten EU applicant countries will
  automatically be refused and returned because they are "safe"
  countries (Justice and Home Affairs Council, 14-15 October).
  Second, the Conclusions of the Seville EU Summit in June which
  threatened trade and aid sanctions against third world countries
  who refuse to accept readmission agreements - with the automatic
  repatriation of their own nationals, people who may have passed
  through their country on the way to the EU and any stateless
  people in similar situations. 
  Applicant states "safe" third countries
  
  The decision of the Justice and Home Affairs Council on 14-15
  October to declare the ten EU applicant countries "safe"
  to return asylum-seekers is highly questionable. The United Nations
  High Commission for Refugees says that no country can be declared
  100 per cent safe and that each application should be considered
  individually. 
  In its report of 23 October the UK Joint Committee on human rights
  concluded that: "in view of the well authenticated threats
  to human rights which remain in the states seeking accession
  to the EU.. we consider that a presumption of safety is unacceptable
  on human rights grounds". 
  This position is given added weight by the European Commission's
  own updated reports on the accession countries. The latest, for
  2002, include the following conclusions: Estonia (use of force
  by police, arbitrary detention); Czech Republic (widespread discrimination
  against Roma); Hungary (degrading treatment by police, especially
  of Roma); Latvia (bad conditions at asylum detention centres);
  Lithuania (degrading treatment by law enforcement officials);
  Slovakia (degrading police treatment of people, especially Roma)
  and Slovenia (instances of the use of excessive force by police
  against people in custody, particularly Roma). 
  Readmission agreements and sources of migration
When it comes to readmission agreements there is no pretence
  that the countries to which people are to be returned are "safe",
  it is simply an "obligation" to readmit people as determined
  by the EU. Third world countries who refuse, or who are "non-cooperative",
  will face "appropriate measures" which could include
  a "review" of the "allocation" of funds to
  combat poverty (Seville point 11). 
  The Seville Conclusions go beyond the imposition of readmission
  agreements. The EU is demanding that any country which is the
  "source" of a "migratory flow" adopt a whole
  series of measures to prevent people entering and leaving (the
  first named countries are: Albania, China, Morocco, Russia and
  Turkey).
  The measures include "joint integrated border management
  programmes [and] comprehensive control measures". Where
  these plans "do not provide the expected result" the
  country will be "invited" to cooperate and adopt further
  measures or face political and economic sanctions. 
  Conclusion
  
  The new EU's plans for the expulsion of "illegal residents"
  is based on the post-11 September assumption that such people
  are a potential terrorist (or criminal) threat to the internal
  security of the EU. This has been reinforced by the rise of rightwing
  and racist political parties in EU Member States who are now
  in government in a number of countries. In order to marginalise
  them, mainstream political parties have adopted many of the policies
  advocated by the parties of the extreme right - with the main
  target being refugees, asylum-seekers and "illegal"
  residents. Their motivation has not been based on principle but
  rather to remove challenges to their hold on power.
Statewatch analysis
  - EU: safe and dignified repatriation
  
  With a comprehensive
  expulsion policy taking shape deportations from the EU are set
  to rise dramatically. This analysis examines the Commissions
  Communication and EU plans to implement it
In April 2002, the Commission released a Green Paper on an
  EU policy on "return" (expulsion, deportation or repatriation)
  from the EU. In line with the Council of the European Union (the
  15 EU governments) it says that the EU has to develop a detailed
  policy on expulsion of migrants who do not have documents authorising
  them to enter and reside or whose documents authorising them
  to reside have expired ("irregular migrants"). This
  was the first time that the Commission had issued a Green Paper
  on any aspect of EU immigration or asylum law. The purpose of
  EU "Green Papers" is to launch a wide-ranging public
  discussion on whether the EU should have a policy on a particular
  subject at all and what the content of that policy should be.
  Usually, the Commission leaves a year or more after the submission
  of the Green Paper so that there is time for national parliaments,
  the European Parliament, civil society, EU consultative bodies
  and national executives to comment on the issues.
  For this Green Paper, the Commission organised a public hearing
  on 16 July 2002, at which civil society groups who came to speak
  were allotted the princely period of five minutes each to respond
  to the Green Paper. The deadline for submissions was 31 July
  2002. 
  With the ink hardly dry on the Green Paper the Council of the
  European Union adopted a list of third countries (and criteria)
  with whom re-admission agreements (accepting the return of people)
  should be negotiated. The EU Summit in Seville, under the Spanish
  EU Presidency, on 21-22 June endorsed the plan in the Green Paper
  and half-formulated policies on expulsion.
  On 11 July the incoming Danish EU Presidency circulated a draft
  programme on expulsion including "forced and voluntary return".
  It set the deadline for the adoption of a "Return/Repatriation
  Programme" at the November meeting of the Justice and Home
  Affairs Council. In June the German government put forward a
  resurrected proposal for a Directive on transit by air and expulsions
  (see below). On 14 October the Commission issued a formal Communication
  based on the so-called consultations.
  "Return policy on illegal residents"
  
  The Commission's Communication advocates the "return"
  (expulsion/repatriation) of all "illegal residents",
  that is, those who do not "fulfil the conditions for entry
  to, presence in or residence" in the EU. The objective is
  the adoption of a:
  "general policy on the return of illegal residents, valid
  for all regions or countries of origin or transit"
  This extends to those who asylum claim has been rejected, those
  who overstay their visas or residence permits and resident third-country
  nationals who pose a threat to national security or public order.
  It should be noted that people coming from the "white list"
  of countries (eg: USA, Canada, Australia and Japan) who do not
  need visas to enter are quite unaffected by this plan.
  The argument in the Communication is, at times, quite tortuous
  in self-justification. It quite openly recognises that: 
  "where voluntary return fails, the forced return of illegal
  residents becomes a necessity.. The possibility of forced return
  is essential to ensure that admission policy is not undermined
  and to enforce the rule of law.. A credible policy of forced
  returns helps to ensure public acceptance for more openness towards
  persons who are in real need of protection, and for.. labour-driven
  migration"
"Labour-driven migration" is a reference to the
  emerging EU policy whereby people with skills needed to maintain
  EU economies are encouraged to come for fixed terms as distinct
  from people fleeing poverty and persecution.
  The Commission, in line with the Council, argues that: 
  "Third countries must readmit their own nationals unlawfully
  present in a Member State and, under the same conditions, nationals
  of other countries who can be shown to have passed through their
  territories before arriving in the EU"
  
  The "smooth and timely return of illegal residents"
  is hampered, according to the Commission, by the "lack of
  willingness to return voluntarily" and "resistance
  to return". 
  The main problem for the EU in operating an expulsion policy
  is partly because third world countries are highly reluctant
  to accept people back and create the complex infrastructure needed
  for reception, housing, employment etc. This is compounded by
  the fact that many "illegal residents" do not hold
  identification papers from their country of origin - so, in turn,
  third world countries refuse to accept undocumented people.
  The EU's main device for getting round this problem is to issue
  its own travel documents, the EU's laissez-passer. To this will
  be added the European Visa Identification System. When in place
  this will include the storage of an "electronic photo or
  other biometric identifier combined with the scan of the travel
  document shown by the visa applicant" on a "central
  database". The objective is to: "identify people without
  the need for their cooperation".
  The idea of "joint return operations" is gaining currency
  too by the bringing together of people to be deported to a country
  from different EU states. Small numbers of returnees may be placed
  on normal flights including escorted and restrained (ie: tied
  down by some means) returns - providing passengers and especially
  the air crew do not object. Some EU states "use small charter
  jets in cases of non-compliant forced returns". However,
  larger charter flights are increasingly being used "with
  the necessary escorts", but this is costly "when the
  capacity cannot be fully utilised". The Commission says
  this:
  "often happens due to the unavailability of the returnee
  because of absconding, illness or major resistance of the returnee
  or legal action at a very late stage to avoid removal"
  
  So instead of flight from individual countries "joint operations"
  with "voluntary and forced returns" are to be encouraged
  (see below).
  Overall the Commission's Communication is so totally in step
  with decisions already made by the Council it is hard to see
  what the Commission's role is, except perhaps to find some of
  the money to finance the plan.
  EU Ministers declare applicant countries "safe"
  to send back asylum-seekers
  
  The meeting of the EU's Justice and Home Affairs Council in Luxembourg
  on 14-15 October took two steps to ensure that thousands of asylum-seekers
  arriving in EU countries from central and eastern Europe can
  be sent straight back without their claim for asylum being considered.
  The Declaration by EU Ministers (see below) says that from the
  "day of signature of accession treaties" the ten central
  and eastern European states due to join the EU in January 2004
  will be considered "safe" countries of origin and that
  applications for asylum from nationals from those countries will
  be considered as "manifestly unfounded". The applicant
  states are expected to sign the accession treaties next spring.
  The ten countries are: Cyprus, Czech Republic, Estonia, Hungary,
  Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. 
  The Justice and Home Affairs Council argues that all the applicant
  countries are "safe" and "democratic" and
  are committed to the European Convention on Human Rights and
  introducing the full justice and home affairs acquis (including
  the Schengen provisions). 
  The presumption that all the applicant countries are "safe"
  to send back asylum-seekers to is highly questionable. There
  have been a number of cases where it has been judged that, for
  example, it cannot be considered "safe" to return Roma
  to certain of these countries. Moreover, the presumption that
  proper democratic and legal standards are already in place in
  all the applicant countries is not borne out by the evaluations
  carried out by the Commission which says that much progress is
  needed before the justice and home affairs acquis is being fully
  implemented. In the implementation of the Schengen acquis (which
  is now part of the overall EU acquis) it is reported that this
  will not be fully implemented for years to come. 
  The Austrian proposal
  
  In a linked demand the Austrian government put forward a more
  far-reaching proposal which the JHA Council agreed should be
  considered by the European Commission and that it should "report
  back to the Council as soon as possible". The Austrian government
  proposal calls for a binding Regulation on all EU Member States
  for "a European list of safe third countries" to which
  people could automatically be returned to be adopted by the end
  of the year.
  The list of countries proposed by Austria covers the ten applicant
  countries due to join the EU in January 2004 plus Norway, Switzerland,
  Iceland, Bulgaria and Romania. 
  Source: Common European list of safe third
  countries, Note from the Austrian delegation, doc no 12454/02.
  The Declaration by the JHA Council reads as follows: 
  "We, the Ministers of Justice and Home Affairs of the
  Member States of the European Union, having met in Luxembourg
  on 15 October 2002,
  Whereas: 
  The negotiations with the Candidate States with which negotiations
  on accession to the European Union have been initiated have made
  considerable progress, in particular in the field of justice
  and home affairs; 
  Upon accession, those Candidate States will become bound by the
  Protocol on asylum for nationals of Member States of the European
  Union, annexed by the Treaty of Amsterdam to the Treaty establishing
  the European Community; 
  In the meantime, the Member States are resolved, as from the
  day of signature of accession treaties, to deal with applications
  for asylum lodged by nationals of those Candidate States, on
  the basis of the presumption that they are manifestly unfounded;
  The exercise of any decision-making power of each individual
  Member State in asylum matters will take place with due respect
  of obligations under international law, and in particular obligations
  under the Geneva Convention relating to the status of refugees
  and the European Convention for the Protection of Human Rights
  and Fundamental Freedoms; 
  Declare the following: 
  Given the level of protection of fundamental rights and freedoms
  by the Candidate States, Member States agree to the presumption
  that Candidate States with which an accession treaty is being
  negotiated are safe countries of origin for all legal and practical
  purposes in relation to asylum matters, as from the date of signature
  of such accession treaty.
  Accordingly, any application for asylum of a national of any
  such Candidate State shall be dealt with on the basis of the
  presumption that it is manifestly unfounded, without affecting
  in any way, whatever the cases may be, the decision-making power
  of the Member State concerned." 
  EU seeking readmission (repatriation) agreements with 11 countries
  The meeting of the EU's Justice and Home Affairs Council (JHA)
  on 14-15 October received a report from the European Commission
  on progress being made to get readmission agreements with seven
  countries (Morocco, Sri Lanka, Russia, Pakistan, Hong Kong, Macao
  and Ukraine) and the drafting of negotiating mandates for a further
  four countries (Albania, Algeria, China and Turkey). The purpose
  of readmission agreements is to introduce an obligation on the
  third country to automatically readmit its nationals and stateless
  people coming from or having lived in that country. 
  The EU brings to bear economic (trade and aid), diplomatic and
  political pressure on third countries to sign readmission agreements
  which are described as "an extremely useful and efficient
  instrument in the fight against illegal immigration" (JHA
  Council press release, 15.10.02). The JHA Council emphasised
  the importance of an expected report from the European Commission
  on the financial cost of:
  "- the repatriation of illegal immigrants and rejected
  asylum-seekers, 
  - for the management of external borders, 
  - for asylum and migration projects in third countries... in
  particular in order to conclude readmission agreements"
  Although still awaiting this report the JHA Council concluded
  that: 
  "A combined action of the European Community and of Member
  States in the fight against illegal immigration will be much
  more cost-effective than providing support to a growing number
  of illegal immigrants"
  
  In simple terms the Council of the European Union is seeking
  to justify in terms of "cost-effective" measures, not
  of rights and obligations: the automatic return of asylum-seekers
  from third countries through readmission agreements or to EU
  applicant countries in central and eastern Europe (see: EU Ministers
  declare applicant countries "safe" to send back asylum-seekers)
  plus the tracing and repatriation of "illegal" immigrants
  living in the EU combined with effective external border controls.
  This is "much more cost effective" than having to entertain
  lengthy asylum procedures and the cost of housing and looking
  after people who have fled from persecution and poverty.
  The report from the European Commission on: "Community readmission
  agreements - state of negotiations" (for text see below)
  dated 10 October shows that of the state of play with the seven
  selected countries as follows:
  1. Morocco: although the EU's demand for a readmission agreement
  was formally sent in May 2001 there has been "no formal
  response" and after two informal meetings this year it is
  concluded that: "Morocco did not agree to launch formal
  negotiations".
  2. Pakistan: although the EU's demand for a readmission agreement
  was formally sent in April 2001 there has been "no formal
  response" and no informal meetings.
  3. Russia: although the EU's demand for a readmission agreement
  was formally sent in April 2001 there has been "no formal
  response" despite "repeated contact at diplomatic level".
  4. Sri Lanka: a final text was "initialled" in Brussels
  in July 2002 and the Commission is starting "the two-step
  ratification procedure" (agreement by both sides).
  5. Hong Kong: this is likely to be "the first ever Community
  readmission agreement". The agreement was initialled in
  November 2001 and on 23 September 2002 the Commission was authorised
  to sign on behalf of the EU. 
  6. Macao: agreement due to be "initialled" on 18 October
  2002.
  7. Ukraine: text sent in August 2002 and formal negotiations
  expected to start in Kiev in November.
  Source: Readmission agreements, from the Commission
  to the Council: 12625/02, 10.10.02; Criteria for the identification
  of third countries with which new admission agreements need to
  be negotiated - draft Conclusions: 7990/02, 16.4.02. 
  Afghanistan "safe" for return
  
  The EU Justice and Home Affairs Council on 28-29 November is
  expected to adopt an "EU repatriation plan for Afghanistan"
  which for Afghanistan": 
  "includes voluntary and forced return albeit with voluntary
  return as the preferred option"
  The proposal is that the European Commission will chair a committee
  (ACRG, Afghanistan Coordination Return Group) to coordinate expulsions
  by EU Member States. The Commission will provide part of the
  funding at the Afghanistan end and, with Member States, arrange
  "joint flights" which may be contracted out to international
  organisations like the IOM (International Organisation on Migration).
  The outstanding problem to be resolved by the November meeting
  is "how best to obtain the consent of the Transitional Government
  of Afghanistan" both to the repatriations and to the EU
  issuing its own Laissez-Passer travel documents.
  The whole plan is based on "repatriation by air to Kabul"
  and (almost in holiday-like language) "onward travel to
  the intended destination".
  The "Repatriation model" is defined as:
  "The preferred model for return is by voluntary return.
  Afghans refusing to avail themselves of voluntary repatriation
  may after a passage of reasonable time be repatriated through
  forced return by those countries wishing to do so"
  
  In abstract bureaucratic language the plan says that should take
  place "in safety and with dignity and in full knowledge
  of the facts", that is, about "their repatriation and
  reintegration in Afghanistan". After being air-lifted to
  Kabul there will be "appropriate reception facilities
  and "full board and lodging for up to X days after arrival"
  (the "X" is in the original and is a cost dependent
  factor). Then "appropriate onwards transport" will
  be arranged and "where relevant" the "escort of
  the returnees" (whether this is intended for their safety
  or to ensure that they go where they say they are going is not
  clear).
  Finally, the EU is provide "Information for returnees"
  which will include:
  "adequate counselling regarding risks of mines and unexploded
  ordinance"
  Transit by air between EU states
  
  Another proposal resurrected in the EU expulsion plans is one
  from the German government, put forward on 12 April 1999, for
  a Joint Action (now transposed into a Council Directive) on "Assistance
  in cases of transit for the purpose of expulsion by air"
  (doc: 7264/99).
  A UK Home Office Explanatory Memorandum produced on 24 September
  2002 says that the proposals on detention and "the use of
  legitimate force" are not covered by current laws. However,
  the UK government supports "delivering higher numbers of
  sustainable returns" through "safe, dignified removals"
  but is worried about the costs. 
  The 1999 proposal was cleared by the UK parliament in May (House
  of Lords) and June (House of Commons) 1999 and now, two and a
  half years later, no wider consultation is to take place with
  civil society as: "This is an operational matter".
  There was no normal EU-wide consultation before the German proposal
  was drawn up. 
  The proposal requires any Member State to assist in the expulsion
  of a migrant whenever requested by another Member State. This
  will include detaining and:
  "using legitimate force to prevent or end any attempt
  by the third-country alien to resist transit" (Article 4.3) 
  Each Member State will automatically have to accept the word
  of the Member State requesting assistance that there is no risk
  of torture, death or other inhuman or degrading treatment for
  the migrant in the state of destination. The requested state
  would not be obliged or even permitted to consider whether this
  was in fact the case, as long as the officials of the requesting
  state have ticked a box on a form asserting that there is no
  such risk.
  There is no obligation on the requesting state to limit requests
  to certain situations, or to consider human rights issues before
  deciding to expel and requesting assistance of another Member
  State. Moreover, Article 6 of the proposal fails to mention that
  observation of the European Convention on Human Rights and other
  international human rights treaties (the UN Convention Against
  Torture and the UN Covenant on Civil and Political Rights) must
  also have higher priority than the Directive.
  Joint EU expulsion flights for "group returns"
  
  The French government is taking the lead on a project to:
  "rationalise expulsion measures, in particular by means
  of group returns" (doc no: 11388/02)
  
  The idea of moving migrants to be expelled around the EU for
  flight back to a particular country is not new but this proposal
  (backed by the Council and the Commission) is intended to "rationalise"
  this process. 
  France has opened talks with Germany and the UK on the possibility
  of joint "European charters". The French Ministry of
  the Interior with responsibility for expulsion (DLPAJ/DCPAF Directorate
  of Civil Liberties and Legal Affairs/Central Border Police Directorate)
  is to organise monthly meetings to work out the procedure - which
  has to include:
  "legal framework; operational constraints (security rules
  during flights, composition of escort, requests to overfly third
  states etc); diplomatic constraints (issue of consular [EU] laissez-passer,
  reception by the authorities of country of destination etc)"
  International Organisation on Migration (IOM)
  
  Interestingly all references to the IOM in the Commission's Green
  Paper (April, 2002) are omitted from its final Communication
  (October, 2002) even though it carried out 87,628 voluntary returns
  from the EU in 2000. This may be because it has become the target
  of protests and some EU member states are reluctant to draw attention
  to the major role played in repatriation by an international
  organisation which is not accountable to the EU (see Statewatch
  vol 10 no 3/4).
  The organisation was created in 1951 by the USA and Belgium as
  the "Provisional Intergovernmental Committee for the Movement
  of migrants from Europe". It is a product of the Cold War
  period helping refugees from Hungary in 1956 and Czechoslovakia
  in 1968. During this period it acquired a nickname as a "travel
  agency" and in 1989 with the fall of the Berlin Wall was
  renamed the IOM.
  The IOM now has 93 member states and 36 Observer states with
  14 EU states (all except Spain) and 8 of the 10 EU applicant
  states. It has 19 regional offices and over 100 field offices.
  The IOM, under its "Assisted Returns Service", runs:
  "a comprehensive migration management system for the
  benefit of all parties"
and in working with "migrants and governments" it:
  "assists rejected asylum seekers, trafficked migrants,
  stranded students, labour migrants and qualified nationals to
  return home on a voluntary basis. IOM also works with other organisations
  helping repatriate refugees"
  
  Its stated policy is that: 
  "the migrant's free will is expressed at least through
  the absence of refusal to return, eg: by not resisting to board
  transportation or not otherwise manifesting disagreement"
  
  Where physical force has to be used on the migrant this is: 
  "the responsibility of national law enforcement agencies"
  
  However, tests of "voluntariness" is open to question
  as far as the role of national governments are concerned. Evidence
  from the Netherlands presented to the EU earlier this year suggests
  there is a degree of pressure on asylum applicants (doc no: 6660/02).
  In the Netherlands the "alien" is told they do not
  have any future prospect in the country if their application
  fails. The first stage is "preparation and orientation"
  for return to the "country of origin" which is "initiated"
  when a negative decision is made in the first instance of the
  application - that is, before any appeal.
  The second stage which follows: 
  "involves the actual return journey.. the IOM is the
  most appropriate partner to organise [it]."
  
  In the UK the "Voluntary Assisted Returns Programme"
  (VARP) run by the Immigration and Nationality Department of the
  Home Office is "implemented by the IOM and supported by
  Refugee Action". Between September 2000 and August 2001
  a total of 1,033 asylum-seekers were returned through VARP, the
  majority to Albania and Kosovo. An "independent evaluation
  by Deloitte and Touche" found "a high level of user-satisfaction"
  based on a sample of 65 migrants.
  The IOM has been targeted by a number of activist groups - in
  Ukraine, Finland, France, Germany, Czech Republic and the UK
  - who view its role as implementing unacceptable EU policies.
  The Noborder camp in Strasbourg in July called for an international
  campaign against the IOM and a protest outside the IOM office
  in Helsinki on 11 October closed it down for the day (see: www.noborder.org/iom).
  In the Sangatte, France detention centre a IOM video was shown
  to dissuade people from coming to the UK, apparently 17 would-be
  asylum-seekers out of 17,500 were persuaded to return home (CARF,
  Autumn 2002).
  How many are being expelled and what happens to them? 
  
  Hard figures are hard to come by. A set of figures produced in
  May 2000 (EU doc no: 7941/00) gives a total of 166,909 people
  expelled from EU countries and Norway. However, there is no breakdown
  between voluntary and forced expulsions and an indeterminate
  number were simply being re-cycled within the EU - returned to
  another EU country from which they arrived. The Commission's
  Communication (above) promises that figures will be provided
  in 2003.
  The largest number were expelled from the UK, 45,100, followed
  by Germany (32,223), Austria (20,027), Netherlands (12,204) and
  Italy 12,036).
  Astonishingly not a single public report is available on what
  happens to migrants when they arrive wherever they are taken.
  It appears that the EU collectively feels no responsibility for
  the lives and welfare of people it expels. 
  Defining the facilitation of entry, transit and residence
  
  A proposal put forward by France under its Presidency of the
  EU in July 2000 finally went through the Justice and Home Affairs
  Council on 14-15 October 2002. The original proposal was roundly
  criticised by civil society and national parliaments. The European
  Parliament was "consulted" and on 15 February 2001
  rejected the proposal. The proposal was effectively dead for
  18 months but in the post-11 September plans to remove "illegal"
  migrants from the EU it was resurrected and adopted.
  The reason civil society and the European Parliament called for
  the French proposal to be rejected is that it makes it an offence
  for:
  "any person who intentionally assists a person who is
  not a national of a Member State to enter, or transit across,
  the territory of a Member State..."
  (Art 1.1.a)
  
  There is no test as to whether these acts are undertaken for
  financial gain. Thus help from relatives, extended families and
  friends and support networks are simply lumped together with
  "organised" networks who bring people into the EU in
  exchange for money.
  Any person who "for financial gain, intentionally assists"
  a migrant to reside in the EU is also guilty of an offence. Thus
  a person who runs bed and breakfast or a family where the migrant(s)
  contribute to the household costs could be caught under this
  new offence.
  The scope of Article 1 is extended by Article 2 to a person who
  is "the instigator.. accomplice or who attempts to commit"
  the offences in Article 1.
  The only concession the Council has made is in Article 1.2 where
  it says that Member State "may decide" not to prosecute
  where the "aim of the behaviour is to offer humanitarian
  assistance" to enter and transit under Article 1.1.a (but
  not to 1.1.b on residence). This option for EU governments at
  national level may or may not be exercised and the interpretation
  of "humanitarian assistance" will be down to the courts.
  The "sanctions" laid down in an accompanying Framework
  Decision are for "effective, proportionate and dissuasive
  sanctions" (Framework Directive on the penal framework to
  prevent the facilitation of unauthorised entry and residence,
  doc no: 10075/01).
  Sources: Communication from the Commission,
  On a Community return policy on illegal residents, COM(2002)
  564 final, 14.10.02; Presidency Note, Afghanistan return programme,
  doc no: 12605/1/02, 8.10.02; Assistance in cases of transit for
  the purposes of expulsion by air, German EU Presdiency, doc no:
  7264/99, 12.4.99; Initiative of the Federal Republic of Germany
  for a Council Directive on assistance in cases of transit for
  the purpose of expulsion by air, doc nO: 10386/02, 27.6.02; Explanatory
  Memorandum on proposal for a Council Directive in cases of transit
  for the purposes of expulsion by air, UK Home Office, 24.10.02;
  Proposal for projects, French delegation, doc no: 11388/02, 29.7.02;
  Action Programme for Return/Repatriation based on the Commissions
  Green Paper on a Community return policy on illegal residents,
  ; Action Programme for Return/Repatriation based on the Commissions
  Green Paper on a Community return policy on 
  illegal residents.
  
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