Explanatory Memorandum to COM(2018)634 - Common standards and procedures in Member States for returning illegally staying third-country nationals (recast) - Contribution to the Leaders’ meeting, September 2018 - EU monitor

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Explanatory Memorandum to COM(2018)634 - Common standards and procedures in Member States for returning illegally staying third-country nationals (recast) - Contribution to the Leaders’ meeting, September 2018

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1. CONTEXTOFTHEPROPOSAL

Reasons for and objectives of the proposal

This proposal is part of a package of measures proposed by the Commission as a follow up to the European Council of 28 June 20181 that underlined the necessity to significantly step up the effective return of irregular migrants, and welcomed the intention of the Commission to make legislative proposals for a more effective and coherent European return policy. The main principles agreed in the conclusions of the European Council, which have also been supported by Member States in different fora,2 emphasise the need to reinforce the tools of European solidarity, in particular strengthening the European Border and Coast Guard, to ensure the effective management of the external borders and migration and to establish a more effective and coherent European return policy.

The effective return of third-country nationals who do not have a right to stay in the EU is an essential component of the European Agenda on Migration3. At EU level, the return policy is regulated by Directive 2008/115/EC of the European Parliament and of the Council4 (the 'Return Directive'), which lays down common standards and procedures to be applied in Member States for returning illegally staying third-country nationals in full respect of the principle of non-refoulement. Since the entry into force of the Return Directive in 2010, the migratory pressure on the Member States and the Union as a whole has increased. As a result, the challenges related to the effective return of irregular migrants need to be addressed more than ever.

There are two main challenges that can be identified.

Firstly, Member States encounter difficulties and obstacles in return procedures to successfully enforce return decisions. National practices implementing the EU framework vary between Member States and are not as effective as they should be. Among others, inconsistent definitions and interpretations of the risk of absconding and of the use of detention result in the absconding of irregular migrants and in secondary movements. Lack of cooperation on the part of the third-country nationals leads also to obstructing the return procedures. Member States are not sufficiently well equipped to enable competent authorities to exchange necessary information promptly in view of carrying out returns.

Secondly, the efficiency of the EU's return policy depends also on the cooperation of countries of origin. Over the last three years, the EU sustained efforts in engaging the main countries of origin on cooperation in migration management resulted in good progress and several legally non-binding arrangements for return and readmission have been put in place. Implementation of these arrangements has started and it is now important that all Member States capitalise on these results and make full use of the arrangements to increase returns to the countries concerned. Additionally, the Commission has also proposed to strengthen the use of EU visa policy as a tool to achieve progress in cooperation on return and readmission

Conclusions of the European Council of 28 June 2018.

Meseberg declaration of Germany and France "Renewing Europe’s promises of security and prosperity", 19

June 2018.

COM(2015) 240 final.

2.

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common


standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348,

with third countries. Once it becomes law, this will significantly improve the EU leverage in its relations to countries of origin.

Making returns more effective has been a priority for the past few years. In 2016, the Commission proposed to revise the mandate of the European Border and Coast Guard which was significantly enhanced in the field of return. Under the new mandate, the Agency has been developing new tools to assist and support Member States' return activities and procedures. In the renewed Action Plan on Return of 20175 the Commission indicated how the shortcomings of Member States’ return procedures and practices hamper the effectiveness of the EU return system. The Commission therefore adopted a Recommendation in 2017 recommending a set of measures to be taken up by the Member States to make returns more effective6, including by making full use of the flexibility provided by the Return Directive. On that occasion, the Commission also indicated that based on the experience with the implementation of the Recommendation and depending on the need to take further actions to substantially increase return rates, it stood ready to launch a revision of the Return Directive.

Despite these efforts, there has been little progress in increasing the effectiveness of returns. On the contrary, a decrease in the return rate throughout the EU was observed from 45.8% in 2016 to merely 36.6% in 2017. In order to address the key challenges to ensure effective returns, a targeted revision of the Return Directive is necessary, to notably reduce the length of return procedures, secure a better link between asylum and return procedures and ensure a more effective use of measures to prevent absconding. To achieve a more effective and coherent European return policy, in line with fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union, an urgent adoption of a targeted recast of the Return Directive is needed.

Such targeted recast should:

– establish a new border procedure for the rapid return of applicants for international

protections whose application was rejected following an asylum border procedure;

– provide clearer and more effective rules on the issuing of return decisions and on the

appeals against such decisions;

– provide a clear framework of cooperation between irregular migrants and competent

national authorities, streamline the rules on the granting of a period for voluntary departure and establish a framework for the granting of financial, material and in-kind assistance to irregular migrants willing to return voluntarily;

– establish more efficient instruments to manage and facilitate the administrative

processing of returns, the exchange of information among competent authorities and the execution of return in order to dissuade illegal migration;

– ensure coherence and synergies with asylum procedures;

– ensure a more effective use of detention to support the enforcement of returns.

The proposed targeted changes do not change the scope of the Directive nor do they affect the protection of the rights of the migrants that currently exist, including with regard to the best interests of the child, family life and the state of health. The Directive continues to ensure the full respect of the fundamental rights of the migrants, in particular the principle of non-refoulement.

5 COM(2017) 200 final.

6

Consistency with existing policy provisions in the policy area

This proposal further develops the existing provisions of the Return Directive on common standards and procedures for the effective return of irregular migrants, respecting their fundamental rights and the principle of non - refou I e ment.

It builds notably on the implementation of the Commissions renewed Action Plan and the Recommendation on Return of March 2017, as well as the revised Return Handbook adopted in November 2017 , and complements the proposal to further strengthen the role of the European Border and Coast Guard Agency, with a view to ensure the effective control of the EU s external borders and significantly stepping up the effective return of irregular migrants.

Moreover, in order to better promote voluntary return, Member States should put in place operational programmes providing for enhanced return assistance and counselling, which may include support for reintegration in third countries of return, taking into account common standards on Assisted Voluntary Return and Reintegration Programmes8 in view of further harm onisation of such programmes.

Consistency with other Union policies

3.

This proposal is consistent with the European Agenda on Migration, which developed


President Juncker’s Political Guidelines into a set of coherent and mutually reinforcing

initiatives based on four pillars. Those pillars consist of reducing the incentive for irregular migration, securing external borders and saving lives, a strong asylum policy and a new policy on legal migration.

It also responds to the European Council of 28 June 2018 which requested to significantly step up the effective return of irregular migrants and welcomed the intention of the Commission to make legislative proposals for a more effective and coherent European return policy.

This proposal is consistent and reinforces other Union policies, including:

The Common European Asylum System with the increasing synergies between asylum and return procedures, especially in the context of border procedures;

The European Border and Coast Guard Regulation, which further strengthen the mandate of the European Border and Coast Guard Agency in the area of return. In addition, this proposal requires to set up national systems for return manage ment that should communicate with a central system established by that Agency, in accordance with the new proposal for a European Border an d Coast Reg ulation that is pa rt of thi s legislative package.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

This proposal recasts the Return Directive and should therefore be based on Article 79(2)(c) of the Treaty on the Functioning of the European Union, which empowers the Union to adopt measures in the field of illegal immigration and unauthorised residence, including removal and repatriation of persons residing without a uthorisati on.

7 C(2017) 6505.

8 Non-binding common standards for Assisted Voluntary Return (and Reintegration) Programmes


Variable geometry

With regard to variable geometry, this proposal follows a comparable regime to the current Return Directive.

According to Article 4 of Protocol 22 on the position of Denmark annexed to the Treaties, Denmark shall decide, within a period of six months after the Council has decided on this Directive, whether it will implement this proposal, which builds upon the Schengen acquis, in its national law.

With regard to the United Kingdom and Ireland, the Return Directive presents a hybrid character, as reflected in its recitals (48) and (49). It follows that both Protocol 19 on the Schengen acquis integrated in the framework of the European Union annexed to the Treaties, and Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaties, apply to this proposal.

Based on the respective agreements associating those countries with the implementation, application and development of the Schengen acquis, Iceland, Norway, Switzerland and Liechtenstein should be bound by the Directive proposed.

Subsidiarity

The objective of this proposal is to address the key shortcomings and obstacles encountered by Member States when carrying out returns. The prevention and countering of illegal immigration and return of those who have no legal right to stay is a shared interest of all Member States, which the Members States cannot achieve alone. Further EU action is therefore needed towards improving the effectiveness of the Union return policy, in full respect to the principle of subsidiarity as set out in Article 5(3) of the Treaty on European Union.

Proportionality

Together with the proposal for an extended mandate for the European Border and Coast Guard Agency, this proposal is intended to respond to the challenges faced by the Union as regard migration management and the return of illegally staying third-country nationals. It is part of and reinforces the overall return policy framework already in place, which also consists of operational support tools and programmes, as well as funding mechanisms available to Member States' authorities and organisations involved in return. The changes to the Return Directive are limited and targeted, aimed at effectively addressing the key shortcoming of return procedures and reduce the obstacles that Member States encounter when carrying out returns, while respecting the fundamental rights of the third-country nationals concerned. The proposal does not go beyond what is necessary in order to achieve the stated objectives.

Choice of the instrument

The Return Directive already contains a robust set of norms for the effective and dignified return of illegally staying third-country nationals. This proposal is intended to provide for targeted changes to that Directive which are intended to address certain identified shortcomings and obstacles that Member States encounter when carrying out returns. Since this proposal is to recast the Return Directive, the same legal instrument is the most appropriate.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

1.

CONSULTATIONS


ANDIMPACTASSESSMENTS


Ex-post evaluations/fitness checks of existing legislation

The evaluation and monitoring mechanism to verify the application of the Schengen acquis9 and the information collected through the Return Expert Group of the European Migration Network (EMN REG) and the European Border and Coast Guard Agency have allowed for a comprehensive assessment of how Member States implement the Union policy on return.

Since 2015, when the first evaluation in the field of return took place, several cross-cutting elements that are common to those national return situations and systems assessed so far have been identified (in 21 Member States and Schengen associated countries).

Stakeholder consultations

In its conclusions of October 2016, the European Council called for reinforcing national administrative processes for returns. The Malta Declaration of Heads of State or Government of February 2017 highlighted the need for a review of EU return policy based on an objective analysis of the way in which the legal, operational, financial and practical tools available at Union and national level are applied. It welcomed the Commission's intention to rapidly present an updated EU Action Plan on Return and to provide guidance for more operational returns by the EU and Member States and effective readmission based upon the existing acquis. In its 2015 EU Action Plan on Return and subsequently in its 2017 Communication on a more effective return policy and the accompanying Recommendation, the Commission emphasised the need for a stronger enforcement of EU rules on return in order to increase the overall effectiveness of the EU’s return policy. In its Conclusions of June 2018 the European Council welcomed the intention of the Commission to make legislative proposals for a more effective and coherent European return policy.

The European Migration Network has contributed over the last two years with specialised studies, ad hoc queries and informs on effectiveness of return in EU Member States, alternatives to detention, assisted voluntary return and reintegration schemes, detention and material detention conditions, legal assistance in detention facilities and other topics.

Collection and use of expertise

Technical level exchanges on current implementation challenges has been carried out with the Member States in the context of the Contact Group on Return, the EMN REG and the European Border and Coast Guard Agency resulting, in particular in a revision of the Return Handbook and the European Migration Network study of “the effectiveness of return in EU Member States". The study aimed at analysing the impact of EU rules on return – including the Return Directive and related case law from the Court of Justice of the European Union – on Member States’ return policies and practices and hence on the effectiveness of the return process across the EU.

Impact assessment

Making returns more effective has been a priority for the Commission over the past years. To this end, the European Border and Coast Guard Regulation and the ensuing new mandate of the Agency made significant improvements in the field of returns. Furthermore, the renewed Action Plan on Return and the Recommendation on making return more effective, published

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of

9

in March 2017, indicated how the shortcomings in Member States' return procedures and practices hampered the effectiveness of the return system. Against this background, the Commission and the Member States embarked in technical consultations to analyse the current challenges in returns and to identify the shortcomings, and acknowledged the need for targeted revisions of the existing legislation. These consultations and the ensuing analysis of the key issues at stake, resulted in the revision of the Return Handbook in November 2017. The civil society was also consulted and, in addition, work carried out under the Schengen Evaluation Mechanism provided a thorough overview of issues to be addressed in the field of return. Through the above processes, stakeholders were able to identify both the legal and practical impediments to the effective implementation of returns in the context of the Return Directive and to ascertain the need for a targeted revision of the Directive.

In its conclusions of June 2018, the European Council welcomed the Commission's intention to make legislative proposals for a more effective and coherent European return policy. Taking into account that an in-depth assessment of the key issues in the field of return has been accomplished, the urgency in which legislative proposals need to be tabled and also acknowledging that the revision of the existing Directive is the most appropriate option both in terms of substance and timing, an Impact Assessment on this proposal is not deemed necessary.

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

This proposal does not impose any financial or administrative burden on the Union. Therefore it has no impact on the Union budget.

5. OTHERELEMENTS

Implementation plans and monitoring, evaluation and reporting arrangements

The Commission shall report on the application of this Directive to the European Parliament and to the Council within three years from its entry into force and every three years thereafter; in that occasion, the Commission may propose any amendments that are deemed necessary.

Detailed explanation of the specific provisions of the proposal

The aim of the targeted changes of this proposal is to enhance the efficiency of the return procedure, including its articulation with the termination of asylum procedures. The targeted changes do not amend the safeguards and rights of third country nationals and respects their fundamental rights, in particular the principle of non-refoulement.

Explanations are provided for changes introduced in relation to:

1) Risk of Absconding (Article 6): a strong need exists for EU-wide objective criteria for the determination of the existence or not of a risk of absconding, including unauthorised

secondary movements. To prevent diverging or ineffective interpretations, the proposal sets out a common, non-exhaustive, list of objective criteria to determine the existence of a risk of absconding as part of an overall assessment of the specific circumstances of the individual case.

2) Obligation to cooperate (Article 7): it has increasingly been observed that not all third-country nationals cooperate during the return procedures thus obstructing their return. It is therefore necessary to introduce an explicit obligation for third-country nationals to cooperate with national authorities at all stages of the return procedures, in particular for establishing and verifying their identity in view of obtaining a valid travel document and ensuring the successful enforcement of return decision. This mirrors a similar obligation to cooperate with competent authorities that already exists and applies in the context of asylum procedures.

3) Issuing of a return decision in connection with the termination of legal stay (Article 8): due to the fact that Member States do not systematically issue return decisions in connection with the termination of legal stay, the proposal clarifies the need to issue a return decision immediately after a decision rejecting or terminating the legal stay is taken. When a return decision is issued immediately after or in the same act as a decision rejecting an application for international protection, the enforcement of the return decision is suspended until the rejection becomes final, in accordance with the case-law of the Court of Justice of the European Union.

4) Voluntary departure (Article 9): there is a need to adapt the rules for granting a period for voluntary departure. Such period should not be longer than 30 days, as already foreseen in the Return Directive currently in force. However, this proposal does not make it mandatory anymore, when determining the duration of the period for voluntary departure, to grant a minimum of seven days. This allows Member States to decide on a shorter period. The proposal also establishes a number of cases in which it becomes mandatory not to grant a period for voluntary departure.

5) Entry bans issued during border checks at exit (Article 13): when an illegally staying third-country national is detected for the first time while leaving the Union, in certain circumstances it may be appropriate to impose an entry ban in order to prevent future re-entry and reduce the risks of illegal immigration. At the same time, this should not delay his or her departure, given that the person is already about to leave the territory of the Member States. This proposal introduces the possibility for Member States to impose an entry ban without issuing a return decision following a case-by-case assessment and taking into account the principle of proportionality.

6) Return Management (Article 14): efficient return procedures require instruments that allow information to be made available promptly to the competent authorities and operational schemes that provide enhanced return assistance and counselling to returnees, with appropriate operational and financial EU support. The proposal establishes the obligation to have national return management systems providing timely information on the identity and legal situation of the third-country nationals that are relevant for monitoring and following upon individual cases. These are to be linked to a central system established by the European Border and Coast Guard Agency in accordance with the new Regulation that is part of this package.

The proposal also sets an obligation for Member States to establish voluntary return programmes that may also include reintegration support.

7) Remedies and appeals (Article 16): the effectiveness and speed of return procedures need to be complemented with adequate safeguards. Deadlines for lodging appeals against return

decisions diverge significantly among Member States, ranging from a few days to one month or more. In compliance with fundamental rights, the deadline needs to provide enough time to ensure access to an effective remedy, while not delaying return procedures.

The proposal provides for a specific time-limit (five days) for lodging appeals against return decisions issued in cases where the return decision is the consequence of a decision rejecting an application for international protection that became final.

If the risk of a breach of the principle of non-refoulement has not been already assessed by a judicial authority in asylum procedures, an automatic suspensive effect of the appeal against a return decision must be granted. This is the only mandatory case where automatic suspensive effect shall be granted under this proposal, without prejudice to the obligation for Member States' competent national authorities or bodies to have the possibility to temporarily suspend the enforcement of a return decision in individual cases where deemed necessary for other reasons. Such decision on temporary suspension shall be made quickly, within 48 hours as a rule.

The proposal also establishes that only one level of judicial remedy should be available to appeal against a return decision that is the result of a prior negative decision on an application for international protection, which was already subject to judicial remedy.

Finally, it further harmonises the rules to provide, on request, free legal assistance and/or representation, in accordance with the conditions set under the asylum acquis.

8) Detention (Article 18): there is need for targeted changes in the rules on detention. Firstly, new risks have emerged in recent years, which make it necessary that illegally staying third-country nationals who pose a threat to public order or national security can be detained if deemed necessary. While this is a new ground for detention in the context of return procedures, this ground for detention already exists in the asylum acquis.

Secondly, the maximum period of detention currently established by several Member States is significantly shorter than the one allowed by the Return Directive, and is precluding effective removals. While the maximum period for detention of 6 months and the possibility to prolong in specific circumstances are not modified, this proposal requires that national legislation to provide for not less than 3 months as an initial minimum period of detention, in order to more appropriately reflect the period of time needed to successfully carry out return and readmission procedures with third countries. Detention must however be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.

9) Border procedure (Article 22): while keeping the possibility for Member States to derogate from the application of the rules of the Return Directive for border cases covered by Article 2(2)(a), the proposal provides for specific, simplified rules applicable to third-country nationals who were subject to asylum border procedures: issuance of a decision by a simplified form, no period for voluntary return granted as a rule (except if the third-country national holds a valid travel document and cooperates with the national authorities), shorter time-limit for lodging an appeal, dedicated ground for detention. This border procedure for return will follow up the asylum border procedure. In order to facilitate return, it is proposed to ensure that a third-country national who was already detained during the examination of his or her application for international protection as part of the asylum border procedure may be maintained in detention for a maximum period of 4 months under the border procedure for return. If the return decision is not enforced during that period, the third country national may be further detained if one of the conditions set out in the provisions relating to the general rules on detention is fulfilled and for the period of detention set in accordance with Article 18.

I * 2008/115/EC (adapted)_______