Explanatory Memorandum to COM(2018)303 - Creation of a European network of immigration liaison officers (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)303 - Creation of a European network of immigration liaison officers (recast). |
|---|---|
| source | COM(2018)303  |
| date | 16-05-2018 |
1. CONTEXTOFTHEPROPOSAL
• Reasons for and objectives of the proposal
In its swift and determined response to the migratory crisis experienced in recent years, to the pressures on the common external border and human tragedy in the Mediterranean, the EU put forward a comprehensive strategy intended to manage similar migration challenges in the future. The new Partnership Framework with priority third countries was adopted in 20161 with the aim to go beyond addressing immediate needs and to lay the foundations of an enhanced cooperation with countries of origin, transit and destination with a well-managed migration and mobility policy at its core. All actors, including Member States and EU institutions were called to act in a coordinated manner putting together instruments, tools and leverages to fulfill the clear priorities set with third countries to better manage migration in full respect of humanitarian and human rights obligations.
With almost 500 immigration liaison officers (referred as ILOs) currently deployed by Member States to third countries, and the EU stressing the critical need to enhance partnership with third countries, it is imperative to use these liaison officers to ensure synergies between financial and operational support instruments and inform evidence-based policy making vis-vis these countries.
Although partnership working through immigration liaison officers with third countries was recognized as important already in 2004, when the Council, on the basis of an initiative by Greece and with regard to the opinion of the European Parliament, adopted Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network (referred as ILO Regulation)2, its impact of improved coordination and information exchange has not been fully realised. The Regulation was amended by Regulation (EU) No 493/2011 of the European Parliament and of the Council of 5 April 20113. The ILO Regulation constitutes a development of the provisions of the Schengen acquis.
The existing ILO Regulation sets out the obligation to establish local or regional cooperation networks among immigration liaison officers of Member States and outlines the objectives of such cooperation, as well as ILOs' tasks in relation to the third country and their responsibilities vis-à-vis the sending Member State. Article 1(1) of the ILO Regulation defines "immigration liaison officer" as any representative of one of the Member States, deployed abroad by the immigration service or other competent authorities in order to establish and maintain contacts with the authorities of the host country with a view to contributing to the prevention and combating of illegal immigration, facilitating the return of illegal immigrants and managing legal migration. Article 1(2) of the ILO Regulation specifies that 'liaison officers who are dealing with immigration issues as part of their duties' are also to be considered as immigration liaison officers. This definition includes in practice “airline liaison officers”, “document advisors” and 'law enforcement liaison officers', as far as they are called to fulfil the aforementioned tasks.
Immigration liaison officers are usually deployed to the consular offices of Member States in third countries, but could also be deployed to the competent authorities of the third countries, as well as to international organisations, for a time period to be determined by the deploying Member State. Member States started deploying liaison officers in the early 1990s and since
1 COM(2016) 385 final.
2 OJ L 64, 2.3.2004, p. 1–4.
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the adoption of the ILO Regulation in 2004, the number of officers has grown from 129 to an estimated 492 in 2018, with deployments in 105 third countries. While not all Member States deploy ILOs4, the largest numbers of national ILOs are deployed by Germany, France, Spain, The Netherlands and the United Kingdom.
Furthermore, the amendment of the ILO Regulation adopted in 2011 provided for a cooperation between EBCG Agency and the ILO networks, promoted the use of ICONet for regular exchange of information and practical experiences within the local networks and aimed at rationalising the reporting system related to the activities of ILO networks through the bi-annual Presidency reports.
The role of ILOs is largely recognised from a perspective of managing the EU external borders in accordance with the Schengen acquis. Such work includes the provision of advice to competent third country authorities in support of their efforts to tackle illegal immigration, counter cross-border crime or detect documents' fraud. Moreover, ILOs have operational expertise, first-hand knowledge and contacts in third countries that are highly relevant and useful in enhancing cooperation with these countries and fulfilling information and policy development needs in the field of migration at the European level.
However, the external evaluation of the current ILO Regulation, completed in August 2017, highlighted that the Regulation has had a limited and mostly indirect impact on the establishment of formal networks among ILOs deployed to the same location, on enhancing the collection and sharing of information and on improving coordination of the EU position and activities vis-à-vis third countries.
The evaluation concluded that immigration liaison officers and their networks remain highly relevant in the current global migration context and retain coherence with existing and planned European polices aimed at tackling irregular migration in particular, but it also identified shortcomings. It identified that the limitations of the current ILO Regulation are due to insufficient coordination and engagement at the EU level, caused by neglecting to address the fact that the vast majority of ILOs are Member State resources, (96% of all deployments), with clear bilateral objectives and tasks guided and set by the so-called ILO “back-offices” in their national administrations. The limited effectiveness, level and scope of information sharing has impeded the systematic flow of strategic and operational information both upwards from the ILO Networks to the EU i.e. Commission, the High Representative for Foreign Affairs and Security Policy, EU Agencies and EU Delegations in third countries and horizontally across the networks and Member States. Moreover, the current instruments designed for enhancing information exchange, notably the Presidency reports provided for in Article 6(1) the ILO Regulation and ICONet5 as referred to in Article 3(3) of the current Regulation, are infrequently used by Member States ILOs and therefore have proven largely ineffective. The evaluation has also shown that other forms of reporting remained decentralised and fragmented across Member States, with ILOs reporting on a bilateral basis directly to their own national administration.
Furthermore, the possibilities offered by the Regulation, such as common use of the ILOs deployed to the same location or joint deployments co-financed from the EU budget, have not been fully exploited by Member States. At the same time new European liaison officers’ functions including officers of the European Border and Coast Guard Agency (EBCG Agency) and European Migration Liaison Officers (EMLOs) have been established in priority
4 17 Member States as well Switzerland, Norway deployed ILO in January 2018.
5 Council Decision of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (2005/267/EC) repealed by Regulation
third countries to maximize the impact of Union action on migration in third countries and enhance the engagement of key countries of origin and transit, as well as to step up coordination and cooperation with ILOs.
optimise utilisation of immigration liaison officers, including the new European liaison
officers deployed to third countries to enable them to respond more effectively to EU priorities in the field of migration.
Given that ILOs' line of command (tasking and reporting) is conducted within national authorities, the revision seeks to strengthen engagement at the European level. The proposal aims at reinforcing cooperation between Member States by establishing a formal governance mechanism ("Steering Board") composed of representatives of the Commission, Member States ILOs’ back offices and EU Agencies. The Steering Board should meet regularly to provide a platform for planning and co-ordinating the development and operation of networks based on EU migration management related strategic and operational priorities. These would be agreed collectively between the EU and Member States, for example in case of sudden flows of migrants. By closer understanding of the capabilities and capacities available, the EU will be better equipped to target its interventions and responses to the different areas of migration policy.
Lastly, the evaluation and related consultations of the current ILO Regulation unanimously supported that there is little, if any, value in bi-annual Presidency reports6 covering the activities of ILO networks and the illegal migration situation in specific third countries. Therefore, the proposal terminates this obligation and introduces reporting on subjects of shared EU interest discussed and agreed with the Steering Board. It also provides for systematic updates on current and intended deployment of liaison officers by all sending entities.
• Consistency with existing policy provisions in the policy area
This proposal responds to the calls of the European Parliament and the European Council to develop coherent and credible policy with regards to preventing and countering illegal migration, tackling migrant smuggling and trafficking in human beings, enhancing return of illegally staying third-country nationals and managing effectively the external borders of the European Union. Clear orientations to this end were set out by the European Council in April 20157 which recalled the need for greater cooperation among Member States and the Commission and the countries of origin and transit in order to control illegal immigration.
In 2015, the European Agenda on Migration8 and the EU Action Plan against Migrant Smuggling (2015-2020)9, identified the evaluation of the application of the existing ILO Regulation as one of its priority actions in view of enhancing information sharing and better prevention of illegal immigration and migrant smuggling. At the same time, the Commission announced deployment of EMLOs, with the purpose of strengthening of the EU Delegations’ capacities in the field of migration. At present, EMLOs are deployed to13 priority countries10, and have joined ILO networks to closely coordinate the work in this field with other liaison officers on the ground.
Format of the report was specified in Commission Decision 2005/687/EC.
www.consilium.europa.eu/en/press/press-releases">www.consilium.europa.eu/en/press/press-releases.
COM(2015) 240.
COM(2015) 285.
Ethiopia, Jordan, Lebanon, Mali, Morocco, Niger, Nigeria, Pakistan, Senegal, Serbia, Sudan, Tunisia
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Two years later, in the Communication on the Delivery of the European Agenda on Migration , the Commission announced that, based on the outcome of the evaluation of the ILO Regulation, a common framework and clear mandates of staff deployed to third countries to take act ions to counter migrant smuggling would be established though the revision of the current legal framework. This is further in line with the policy priorities identified in the Communication on Trafficking in Human Beings12, to improve coordination of the internal and external aspects of EU anti-traffic king action, including through relevant networks.
With this proposal, the Commission contributes to the overarching policy priorities in the area of countering illegal immigration and management of migration and the Unions external borders. T his proposal builds on existing policy, notably the current Regulation which
establishes tasks of ILOs and creates ILO network but brings it to a qualitatively different level. This proposal substantially expands upon the ability of the ILO networks to respond effectively and in a timely manner to present or future migration related challenges by proactively reinforcing, assessing, and coordinating the actions of Member States, the Commission and Union Agencies in the implementation of joint measures outside or at the external EU borders. This revision will also allow for exploiting in full the potential of the network of liaison off icers depl oyed by the Com m iss ion and Union Agencies.
Consistency with other Union policies
This proposal is closely related to and complements a number of Union activities on the policy area of migration, namely:
• Prevention of and countering of migrant smuggling and trafficking in human beings given that the effective actions against criminal activities by smugglers and traffickers must be undertaken along the entire migratory route, starting upstream in third countries of origin and transit;
• Return of illegally staying third-country nationals, for which improvement of practical cooperation and arrangements with countries of origin is an essential precondition to ensure the implementation of existing readmission agreements and finalisation of on-going negotiations as well as the enforcement of return decisions;
• Integrated Border Management that identifies risks for internal security and threats that may affect the functioning or security of the external borders, cooperation among Member States, with the support and coordination of EBCG Agency, as well as cooperation with third countries, in particular with neighbouring countries and those third countries which have been identified through risk analysis as countries of origin and transit;
• Legal migration and Integration, which are integral parts of the EU’s overall
cooperation with third countries on migration issues and essential for a smart and effective management of migration flows, in particular by embracing the concept of Integration Liaison Officers in Embassies in key third countries, as outlined in the 2016 Integration Action Plan13;
• External relations policy of the Union given that the immigration liaison officers deployed to third countries should facilitate and encourage operational cooperation between Member States and third countries, including by liaising with third
COM(2017) 558. COM(2017) 728 final.
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countries’ authorities on migration management, protection, migrant smuggling,
trafficking in human beings, return and readmission as well as management of borders;
• Data protection insofar as this proposal ensures the protection of fundamental rights
of individuals whose personal data is processed.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
Legal basis
This legislative proposal is based on Article 79(2) of the Treaty on the Functioning of the European Union (TFEU), which authorise the European Parliament and the Council to adopt measures in the area of legal immigration, illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation and combatting trafficking in persons, as well as on Article 74, which authorises Council to adopt measures aiming to ensure administrative cooperation between relevant departments of Member States in the area of Freedom, Security and Justice.
Subsidiarity (for non - e xcl usive competence)
The objective of this proposal is to ensure optimal utilisation of immigration liaison officers, including those deployed by the Commission and Union Agencies to third countries, in order to implement more effectively EU migration policy priorities, such as preventing and combatting illegal immigration, facilitating return of illegally staying third country nationals as well as supporting management of legal migration, including in the area of international protection, resettlement and pre-d ep arture integration measures, in a more effective manner. Meeting these objectives requires a coordinated approach at the EU level, involving all national authorities and EU bodies responsible for the deployment and management of liaison officers dealing with migration issues in third countries. T he prevention and countering of illegal immigration, in particular, is a shared interest of all Member States, which the Members States cannot achieve alone, thereby necessitating coordinated action at the European level and targeted measures in full respect to the principle of subsidiarity as set out in Article 5(3) of the Treaty on European Union.
Proportionality
The legislative proposal will respond to the new challenges and political realities faced by the Union, both as regards migration management and internal security. It establishes mechanisms that will allow for a more effective management of the immigration liaison officers, including those deployed by the Commission and Union Agencies to third countries, as part of the measures which contribute to the implementation of the European migration policy in all its aspects. It ensures that information is gathered and shared and that appropriate action is taken to prevent illegal immigration, counter migrant smuggling and trafficking in human beings by intervening at an early stage at the external borders. Moreover, it supports the management of legal migration including in the area of international protection, resettlement and pre-de parture integration measures, in full respect of the national structures and procedures.
The proposal constitutes a further development of the Schengen acquis in combatting illegal
immigration. It enhances cooperation between the relevant EU Member States’ national
of proportionality principle set out in Article 5 i of the Treaty on European Union and without going beyond what is necessary in order to achieve the key objectives.
Choice
of the instrument
The necessary degree of uniformity required for the effective governance of a European network of immigration liaison officers in third countries can be achieved only through a Regulation, with this being confirmed by the initial establishment of an ILO Network. As the overall objectives and policy context have not changed, the same type of legal instrument remains appropriate for this proposal.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
ANDIMPACTASSESSMENTS
Ex-post evaluations/fitness
checks of existing legislation
The Commission carried out an external evaluation of the current ILO Regulation, completed in August 2017.
The evaluation process included consultation of a wide range of sources, including analysis of Presidency reports and documents associated to the work of the Member States Expert Group on ILO Networks, organisation of fact-finding missions in 14 countries where ILOs are deployed (Pakistan, Jordan, Egypt, Nigeria, Ethiopia, South Africa, Albania (Western Balkans region), Morocco, Senegal, Ghana, Turkey, Thailand, China, and Russia), conducting interviews with EU stakeholders, ILO managers in Member States and international organisations and carrying out a survey of ILOs and their managers. Additionally, in-depth interviews with the Commission, High Representative for Foreign Affairs and Security Policy and Union Agencies were conducted. Finally, an ILO managers' panel was constituted by the representatives of four Member States: France, Germany, the Netherlands and the United Kingdom. These sources were triangulated to provide robust analysis, conclusions and recommendations from the evaluation.
Collected evidence confirmed that immigration liaison officers and their networks remain highly relevant in the current global migration context and retain coherence with existing and planned Union policies in the field of migration. However, the evaluation has also revealed that immigration liaison officers are tightly bound to their home administration in terms of taking and prioritising their work as well as sharing information. It highlighted the lack of consideration given to this aspect in the existing Regulation, which concentrates on directing how immigration liaison officers should design, develop and manage networks locally in third countries, neglecting the need for Union level governance of the networks.
Moreover, the evidence in the evaluation has demonstrated that the current Regulation did not instigate the systematic establishment of formal networks, as networking takes place in some form or another in any location where 3 or more immigration liaison officers are deployed in any case. Finally, the evaluation concluded that the Regulation has had a lack of measurable impact on the level and scope of information sharing within a network of immigration liaison officers. The Regulation has neither succeeded in a systematic flow of strategic information and operational intelligence upwards from the ILO Networks to the EU institution and bodies nor horizontally across the networks and Member States.
The results of the evaluation provided evidence that supported the present proposal and have been reflected in the Commission evaluation of the ILO Regulation presented in the Commission Staff Working Document accompanying this proposal.
Stakeholder
consultations
In preparation of this proposal, the Commission was guided by the conclusions of the European Council and discussions in the Council of Ministers and in the European Parliament on migration management and on measures needed to address the migratory crisis.
Targeted consultations with relevant stakeholders were carried out during the external evaluation process. The design of the evaluation was based on a participatory approach allowing for the active involvement of key stakeholders, notably ILOs and ILOs’ managers. 14 workshops were carried out in key third countries where liaison officers are deployed, involving consultations with all relevant staff, notably from EU Delegations, Member States’ Embassies and consular sections, international organisations such as IOM and UNHCR as well as from national authorities of the hosting countries. Furthermore, at different stages of the process consultations took place with EU institutions and EU Agencies, as well with Member States seconding the highest number of ILOs.
The Member States Expert Group on ILO Networks was involved throughout the evaluation process and was consulted on the recommendations. Additional tailored consultations with Member States' ILOs and other relevant stakeholders took place in six regional events, between November 2017 and March 2018 in Islamabad, Moscow, Belgrade, Tunis, Amman and Dakar. Two targeted consultation sessions with EU Agencies took place in November 2017 and January 2018 with more detailed follow up videoconference conversations with EBCG Agency and Europol. A panel of ILOs' managers from Member States with the largest ILO networks was re-convened in January 201814, to provide additional insight before developing this proposal.
The results of the stakeholder consultation have broadly concurred with the conclusion of the external evaluation. The consulted stakeholders have appreciated the potential of immigration liaison officers to support the implementation of the Union priorities in the field of migration. They voiced need for better cooperation and coordination mechanisms to be established. Member States, in particular, stressed value of cooperation with non-EU states deploying liaison officers and requested flexibility to be retained as to the formation of the local and regional networks of immigration liaison officers. The Union Agencies solicited a closer cooperation with the networks of immigration liaison officers and more effective sharing of information with the Agencies and use of analytical product produced by the Agencies. Furthermore, there was a unanimous agreement across all consulted stakeholders on the ineffectiveness of the current provisions linked to information sharing and reporting mechanisms.
• Impact assessment
Through the evaluation and accompanying Commission research it was apparent that the revised Regulation would have only limited impact related to administrative burdens while other broad economic, social or environmental impact seemed either irrelevant or more indirect and longer term. The proposal will directly affect a small constituency of
This panel was attended by France, Germany, Spain, The Netherlands and the United Kingdom.
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approximately 500 officials deployed by Member States in third countries, plus a small representative group of managers, with third country administrations hosting ILOs being affected only indirectly. Indeed the provisions of this proposal have no impact on either the core tasks of these officials, nor the costs incurred by Member states and other bodies in deploying them. The evaluation and Commission analysis was carried out in close consultation and liaison with the relevant Member States administrations directly affected by the proposal with potential impacts and relevant questions being discussed and tested with them throughout the process.
On the basis of that ongoing consultation and alongside the evaluation findings and our own analysis it was concluded that no significant impacts of the proposal are to be expected. Moreover, based on the evaluation findings a detailed comparison of alternative policy options is not considered relevant as no real alternatives were identified that address the problems highlighted, and as a result this proposal did not necessitate an impact assessment.
Fundamental
rights
This proposal respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. In particular, this proposal fully respects human dignity, the right to life, the prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security, the right to the protection of personal data, the right to asylum and protection in the event of removal and expulsion, the principles of non-refoulement and non-discrimination, the right to effective remedy, and the rights of the child.
4. BUDGETARYIMPLICATIONS
European network of immigration liaison officers will be financed through the dedicated EU funding instrument. Under the current Multiannual Financial Framework (2014-2020) the resources has been assigned for this purpose in the Internal Security Fund-Borders and Visa. It is envisaged that the expenses linked to the implementation of this proposal, notably to support deployment of the immigration liaison officers by the Commission as well as administrative and operational costs related to activities of networks of immigration liaison officers as tasked through the new Steering Board will continue to be eligible under the same budget line in the next MFF. If the proposal is adopted before the next financial framework, the necessary resources (estimated at EUR 860 000) will be financed from the current ISF-Borders and Visa budget line and the amounts will be deducted from the overall 17,3MEUR earmarked for the implementation of this proposal. The costs linked to the implementation of this proposal are allocated as follows 1,6MEUR for the functioning of the Steering Board, 12,2MEUR for the implementation of the activities of a European network of immigration liaison officers and 3,5MEUR estimated for the deployment of the immigration liaison officers by the Commission. The resources required for this proposal are compatible both with the current MFF (2014-2020) and with the Commission proposal for the 2021-2027 Multiannual Financial Framework of 2 May 2018.
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will report on the implementation of the proposed regulation to the European Parliament and the Council. The findings are to be made public.
• Consequences of the various protocols annexed to the Treaties and of the association agreements concluded with third countries
The proposal builds on the Schengen acquis. The consequences for the various protocols therefore have to be considered with regard to Denmark, Ireland and the United Kingdom; Iceland and Norway; and Switzerland and Liechtenstein. Likewise, the consequences for the various Acts of Accessions must be considered. The detailed situation of each of the States concerned is described in recitals of this proposal.
Detailed
explanation of the specific provisions of the proposal
This proposal lays down the general principles for the creation a European network of immigration liaison officers deployed by Member States as well as the Commission and Union Agencies to third countries with the objective of contributing to managing migration effectively and ensuring a high level of internal security within the European Union.
For these purposes, the proposal sets out the following elements in view of reinforcing the governance of a European network of immigration liaison officers:
• Adjusts the title of the Regulation and the key terminology to better reflect the objectives of the proposal, notably the aim to enhance the European coordination of the immigration liaison officers.
• Further clarifies the definition of immigration liaison officer, making an explicit reference to law enforce ment liaison officers working on mmigration-related tasks.
• Introduces a Steering Board at the European level to strengthen among Member States, the Commission and the Union Agencies the network management and coordination of immigration liaison officers deployed to third countries.
• Ends the obligation of the bi-annual Presidency report, introduces reporting requirements to be agreed by the Steering Board, which will include follow-up act ions, and also introduces the possibility for the Steeri ng Board to commission ad-hoc targeted information requests.
• Reinforces information exchange between immigration liaison officers as well as members of the Steering Board via a secured web-based platform.
• Provides legal certainty as to processing of personal data by immigration liaison officers for the purpose of fulfilling tasks and activities defined by the proposal.
* 377/2004 (adapted) ^ new