[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 6.4.2005

SEC(2005) 435

COMMISSION STAFF WORKING DOCUMENT

Annex to the General Programme Solidarity and Management of Migration Flows Extended impact assessment {COM(2005) 123 final}

1. WHAT ARE THE MAIN PROBLEMS IDENTIFIED?

1.1. The need for solidarity supporting the implementation of EU standards

The development of common policies on asylum, migration and management of the external borders of the Union has sought to address a series of global problems:

- persisting economic differences between the EU and other parts of the world and continuing instability or lack of democracy in many third countries. The Union – especially after the formation of the internal market and the single currency – has the opportunity of sustaining economic growth and the progressive improvement in real living standards. This juxtaposition of circumstances is likely to lead to increasing migratory pressure on the European Union;

- a continuous if not growing trend in illegal immigration towards the EU , involving transnational criminal networks operating for profit with complete disregard for human dignity and the safety of the lives of their victims;

- demographic trends within the Union , and in particular an ageing population, which could lead to a decline in the EU’s work force, threatening economic growth, living standards and the maintenance of a high level of social protection. Part of the response to these trends has been to reconsider immigration policies across Member States and to open specific ‘labour migration’ channels so as to ensure the potential contribution of migrants to the EU’s work force and to sustaining growth;

- the integration of the increasing number of third-country nationals living and working in the EU, which needs to be actively promoted.

The recent enlargement has increased the challenge in maintaining and enhancing the security of our borders and finding a common response to the above global problems. Further enlargement will again increase the stakes.

It is widely recognised that the challenges posed by the management of migration flows can no longer be met adequately by Member States acting alone and independently. In fact, over the past years the European Union has increased its role in developing a coordinated policy with regard to asylum, immigration and external border controls. Comprehensive and coordinated progress has been made on the basis of the programme on the area of freedom, security and justice, agreed by the European Council at its special meeting in Tampere on 15 and 16 October 1999. The Hague Programme adopted by the European Council on 4 and 5 November 2004, will build on the achievements. Its objective is to improve the common capability of the Union and its Member States inter alia to provide protection in accordance with the Geneva Convention on Refugees and other international treaties to persons in need, to regulate migration flows and to control the external borders of the Union. The European Council considers that the common project of strengthening the area of freedom, security and justice is vital to securing safe communities, mutual trust and the rule of law throughout the Union.

Free movement of persons within the Union is one of the four fundamental freedoms at the heart of the Single Market. Despite the absence of internal controls, not every third country national legally residing in the territory of the Member States has the right to reside in another Member State. Some third country nationals have the right, but its exercise is subject to certain conditions.

The abolition of controls has put a premium on ensuring that effective controls are in place along the external borders of the EU to prevent illegal entry so far as possible, the more so given the common objective that everyone living in the EU should be able to do so freely and securely and to enjoy full respect for their basic human rights. Member States are responsible for the implementation of the common standards in the area of external borders. Effective external border controls by Member States, therefore, are an important part of establishing an area of freedom, security and justice for all in the EU, which implies the need for common standards to be applied in this respect across all Member States where people enter into the EU.

Who has the right of free movement under Community law ?

According to Community law the following persons enjoy the right of free movement:

- Union citizens within the meaning of Article 17(1) of the Treaty (EU nationals) and third country nationals who are members of the family of a Union citizen exercising his or her right to free movement, as referred to in Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;

- Third country nationals and their family members, whatever their nationality, who, under agreements between the Community and its Member States, on the one hand, and these countries on the other, enjoy rights of free movement equivalent to those of citizens of the Union. This includes the countries party to the Agreement on the European Economic Area and the Swiss Confederation.

The European Council, at its special meeting in Tampere, acknowledged the need for harmonisation of national legislation on the conditions for admission and residence of third country nationals. In particular, it stated that the EU should ensure fair treatment of third country nationals residing lawfully on the territory of Member States and that a more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens.

Under the common immigration policy developed since this special meeting, of other third country nationals, so far only long term residents have been granted the right to reside in another Member State by Community law. Council Directive 2003/109/EC of 25 November 2003 lays down the conditions for acquiring this right. The Council Directives on the right to family reunification (Council Directive 2003/86/EC of 22 September 2003), study (Council Directive 2004/114/EC of 13 December 2004) and research do not provide for the right to reside in another Member State, although in the latter two provisions are made to facilitate the mobility of students and researchers within the Community for the purpose of the pursuit of studies or research.

By the same token, common standards need to be applied to those seeking asylum in Member States. Such standards will contribute to reducing secondary movements as a result of policy divergences between Member States. In an EU in which a claim is examined only in one Member State, applications shall be examined on the basis of common principles and decisions are taken on the basis of a common definition of persons in need of international protection. Just as there is a common EU interest in ensuring effective border controls, therefore, so too there is in maintaining a fair and effective implementation of the common European asylum system across Member States. Given the objective of securing continued respect for human rights across the EU, this common interest extends to making sure that the basic rights of such people are not infringed, that their application for asylum is properly dealt with and that they are treated with dignity.

There is equally a common EU interest, both to provide support for border controls and to reinforce the effective implementation of legislation in the field of asylum and immigration, in ensuring that those who are staying in the EU illegally are obliged to leave and, if necessary, returned to the country from which they came as efficiently and speedily as possible. Again, the basic rights of such people need to be respected in the process of their return .

This common interest extends to the integration of migrants who are legally staying in the EU. Non-integration means that the contribution of migrants to society as a whole is less than it could be. The failure of one individual Member State in integrating third-country nationals can have adverse implications for other Member States and the European Union and it is therefore in the interest of all Member States to pursue effective integration strategies.

The pursuit of this common interest in each of these related areas requires a common policy at EU level that is adequately implemented in all Member States. The main problem to be addressed, therefore, is how to put into effect this common policy so that it has the greatest chance of success. At the same time, there is a parallel need to ensure that the differential burden imposed on individual Member States, which bear a disproportionate part of the responsibility for policy in this general area – most especially in respect of the control of external borders because of their geographical location – is shared more equitably across Member States as a whole.

In practice, such burden sharing is not only necessary to demonstrate solidarity between Member States in meeting their common interest but is likely to provide part of the response to the challenge of establishing effective means of pursuing EU objectives in the different areas of policy concerned.

To support these policies, the Constitutional Treaty enshrines the principle of solidarity , including sharing of financial responsibility. Making financial responsibility sharing work in an enlarged Union is in itself an important challenge. Properly put into practice, financial responsibility sharing will become a powerful message about solidarity in an enlarged Union, and will contribute to the emerging sense of a shared European public order.

The main problem to be addressed could therefore be defined as follows:

How to implement the principle of solidarity in managing people flows by ensuring a fair share of responsibilities between Member States as concerns the burden arising from the implementation of common policies on asylum and immigration and on the management of the external borders?

1.2 External borders: how to develop a common integrated border management

The development of a common policy for the management of external borders has as its pillars a common corpus of legislation (the Schengen acquis)[1]; coordination and cooperation between Member States together with a common integrated risk analysis, staff trained in the European dimension and interoperational equipment under the aegis of the ‘European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union[2] (hereafter ‘FRONTEX Agency’) and the principle of burden-sharing. The policy aims at ‘a common integrated border management system’ ensuring a uniform and high level of control and surveillance, as the necessary corollary to the free movement of persons within the EU.

The following particular challenges in the management of external borders must be addressed. Ensuring that controls on external borders are as effective as possible in preventing illegal entry is a precondition for the abolition of internal borders within the Schengen. Once someone has entered the EU at a particular point he or she can then move virtually without restriction to other Member States, irrespective of his/her right to reside elsewhere in the EU. In consequence, every Member State in the Schengen area has an interest in the effectiveness with which others control the external borders for which they are responsible, since they stand to be adversely affected through an unwanted influx of illegal migrants if this task is performed inefficiently. There is, therefore, a compelling argument for the adoption of common provisions at EC level in this regard and for establishing some means of ensuring the effective application of these standards, despite the fact that the ultimate responsibility remains with the Member States concerned. This need is explicitly recognised in the Schengen Convention, which lays down common rules on entry of third-country nationals into the EU. As a consequence, Member States with external borders have had to adapt their border checks and surveillance to the standards and procedures decided at EU level and will continue to have to do so in coming years.

Comparatively few Member States have land and/or sea borders of any length or geopolitical importance which require close and detailed surveillance - these bear the brunt of the responsibility for controlling illegal immigration and for safeguarding internal security by controlling the crossing of external borders for the whole of the EU. They also as a result bear a disproportionate share of the costs involved not only in preventing illegal entry but equally importantly of enabling those who are authorised to do so to enter without undue delay or inconvenience.

Where does the burden for the control of external borders lie in the EU 25?

Since the enlargement in 2004 the Member States are responsible for controlling 6.000 km of land border and 85.000 km of coastline. With Norway and Iceland, with whom the internal borders have been lifted on 25 March 2001, the total size of the external borders amounts to 7.000 km of land border and 72.000 of coastline.

Once the new Member States become part of the Schengen area and borders between them and the EU-15 countries and Norway and Iceland are removed and assuming that Switzerland also becomes part of the Schengen area, only 12 of the 25 Member States will have land borders with third countries. Moreover, for four of these (ES, FR, AT and SK), the borders will be less than 100 km. For a further two (EE and LV), the border will be under 400 km long (294 and 356 km, respectively), although here must be taken into account that controlling these borders with Russia may be demanding of two such relatively small countries (with only 1,6 – 2,5 million inhabitants). Just 6 Member States (EL, FI, LT, PL, HU and SI) will have land borders with third countries longer than this (from 670 up to just over 1.300 km). The burden of patrolling the external EU land border will, therefore, fall mainly on these latter six countries and, to a lesser extent, on EE and LV.

Six Member States have relatively long maritime borders with third countries in the Mediterranean and South-West Atlantic (ES, FR, IT, GR, CY and to a lesser extent, MT), representing more than 32.000 km of coastline; four others (FI, EE, LT and PL) have relatively short maritime borders with Russia. (Although four other countries (PT, FR, UK and IE, the last two of which are not at present full members of the Schengen Area) also have long sea coasts, these border the Atlantic or the North Sea and the nearest countries are some distance away.) The burden of patrolling the EU’s maritime border will, therefore, fall largely on the former 6 Member States.

Air borders: at present, a few major international airports (Frankfurt M., Paris-CDG, Amsterdam, Madrid, Milan, Munich, Copenhagen and Vienna) are responsible for most of the flights arriving in the Schengen area from third countries.

See Tables 1 -3 in the Annex

The costs to ensure effective border control are dependent upon a number of factors inter alia:

- the existence and the length of external borders; the number of crossing points;

- the type of border (sea, land, air)) and the geo-physical conditions (whether, for example, it is mountainous or flat, there are cold or less cold waters, rocky or sandy coast line etc.) and the geo-political situation (which are the neighbouring countries and what is the situation there);

- the volume of traffic and the scale of migratory pressure

- the trafficking routes and the impact this has on the scale of the migratory pressure

Member States with long external borders, or borders which are difficult to patrol, with a large number of people entering and leaving and/or with a high risk of illegal crossing, are likely to bear a heavy financial cost for ensuring that EU rules and standards are satisfied in this respect. As a result, these comparatively few Member States are making it possible for the whole EU to benefit from an area where the, free movement of persons is ensured. While they bear most of the costs of safeguarding this area, others are making big budgetary savings as controls at their borders are dismantled.

Accordingly, there is a need for promoting solidarity between Member States to avoid placing a disproportionate burden on some countries and to ensure that the necessary resources are allocated to implementing the common standards. The need is especially acute since many of the countries on which the burden is heaviest have relatively low levels of GDP per head and, therefore, lack the resources to devote as much expenditure to this function as other Member States might wish.

In addition, in an area without internal borders, persons holding a visa or residence permit from a Member State can move freely to other Schengen countries. Therefore, Member States are issuing visas not only in their own interest but also concerning the stay in other Member States. There is a common interest that all the visas are issued under common standards so to ensure that the beneficiaries are bona fide travellers and do not impose an unnecessary additional burden on the external borders controls of other Member States at the time of their arrival at the borders of the EU.

How much do Member States pay to secure the external borders?

The Conclusions of the Seville European Council meeting called on the Commission to carry out before June 2003, "a study (…) concerning burden sharing between Member States and the Union for the management of external borders.”

The Commission collected information from the Member States on the level and nature of financial resources allocated at national level to the management of external borders (controls and surveillance of persons). Gathering detailed and comparable data proved difficult, and such analytical methodology did not allow the Commission to conclude in a detailed way on the questions raised. However, the data gathered did confirm the very substantial size of the investments and operational costs arising from the management of external border surveillance, of which the control of persons is a significant part.

A few figures, gathered on the basis of the above mentioned data, may help to illustrate the size and nature of key investments made by some Member States for surveillance at external borders. In Greece, expenditure in 2002 on transport amounted to € 99.8 million (while € 3.6 million was spent on the maintenance of these means of transport). These include all land vehicles, helicopters and light aircraft for the surveillance of the coast and the territorial waters, as well as vessels for the high seas. On the other hand, € 28 million was spent on equipment for surveillance (for example mobile and fixed camera’s, radar receptors etc) In Spain € 67.5 million was spent on transport and € 66.6 million on equipment in 2002. In addition, in the same year Spain spent €25.6 million on SIVE – the Service Integral of Vigilancia en el Estrecho – the system to follow vessels in the Strait of Gibraltar. In Italy, in the same period € 60 million was spent on means of transport.

Under the Schengen Facility, the seven Member States benefiting from the instrument, receive 953 million for 2004 -2006 for the implementation of the Schengen acquis and external borders control. Poland receives 311 million, of which 70% is supposed to be used by the border guards. Out of the 164 million allocated to Hungary, about 112 million will be used for border infrastructure and operating equipment, mainly for the border guards. Slovenia, which receives in total 118 million, will use 36.4 million of the sum allocated for 2004 (39.4 million) for border infrastructure. All the seven Member States will make considerable investments in setting up relevant IT and communication systems. It has to be noted that the financial contribution given by the Community under this Facility is not sufficient to cover the real cost for Schengen in any of the beneficiary countries.

1.3 Fighting illegal immigration through joint and integrated return management

The number of illegal migrants at present living in EU Member States is a particular challenge. These persons do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territories of the Member States of the European Union either because they entered illegally or overstayed their visa or residence permit, or because their asylum claim has been finally rejected. These persons have no legal status enabling them to stay in the territory of the Member States and can be either encouraged to leave the European Union voluntarily, or forced to do so.

By definition, as illegal migrants do not identify themselves to the authorities, it is difficult to establish a clear picture of the scale of illegal migration in the EU. However, estimates of illegal migration flows can be derived from existing indicators linked to the phenomenon, such as the numbers of refused entries and removals, apprehensions of illegal migrants at the border or in the country, rejected applications for asylum or other forms of international protection, or applications for national regularisation procedures. To these numbers must be added the considerable number of those who do not apply for any form of international protection, either because they entered legally or they “overstay”. From these indicators, annual inflows of illegal migration into the EU are thought to reach over six figures.

Various estimates based on plausible assumptions put the number of illegal migrants living in the Member States at several million. It is likely that the flow will continue at a significant rate as long as ‘push’ factors, such as unemployment or permanent low-wage levels, natural disasters or ecological devastation in third countries, and ‘pull’ factors, such as the informal sector, the possibility of employment with higher level of wages, political stability, maintenance of the rule of law and effective protection of human rights and high labour market conditions remain important.

In principle, third country nationals without a legal status enabling them to stay either on a permanent or a temporary basis, and for whom a Member State has no legal obligation to tolerate the residence, have to leave the EU. This is essential to ensure that admission policy is not undermined and to enforce the rule of law, which is a constituent element of an area of freedom, security and justice.

Moreover, the large number of people living – and working – illegally in the EU poses a number of problems. Firstly, in terms of development of harmonious relations between the host population and migrant communities, as it may give rise to hostility, prejudice and social division. This prejudice tends to be reinforced by the association of illegal immigration with criminal activities in general which extends beyond their involvement in the black economy, In particular, even though the migrants involved are usually victims of trafficking, often enduring long arduous journeys in appalling and dangerous conditions, this is a source of substantial income to its organisers and as such fuels organised crime. Harsh treatment of and hostility towards illegal migrants might not only affects relations with third-country nationals who are in EU Member States legally but could also affect the perception of the EU in third countries as not being a place welcoming immigrants, thus making it more difficult to pursue a policy of actively encouraging the immigration of people with the skills needed by EU economies facing labour shortages in certain sectors, and to foster integration policies for legally staying third-country nationals.

In parallel with external border controls to manage entry into the Union, it is therefore necessary to respond to the challenge of immigrants residing illegally in EU Member States, through a credible return policy . In the absence of such a policy, those who succeed in entering the EU illegally would be able to remain and there would be little deterrent to others seeking to do the same.

In practice, however, putting into effect return policy is a considerable challenge, in particular for Member States with relatively low GDP’s and little experiences with the complex process of return management in which to develop good working relationships with the countries of return, whilst balancing individual rights with state interest in a credible immigration policy at home.

The great majority of those who are found to be living illegally in the EU and who are ordered to leave do not in fact do so for a number of reasons. Whatever one thinks of these reasons, Member States are faced with a series of difficulties here in case of the refusal of these persons to leave voluntarily:

- establishing their nationality and true identity, arranging travel documents and suitable means of transport,

- verifying that they will not be at risk if they return to their home country following new legal challenges which would call into question administrative and judicial acts to the contrary,

- persuading the governments concerned, in accordance with international law, to readmit their nationals or those they are held responsible for and

- overcoming factual and organisational impediments to their removal in the process.

This means that illegal situations are often de facto allowed to continue, and that Member States tend to incur substantial and ongoing costs in detaining the people concerned for long periods as well as engaging in protracted legal battles over their removal.

Given the extent of the difficulties involved, Member States are much more likely to overcome them if they act collectively rather than individually – in particular, if they follow common ‘proven’ models, such as the ‘integrated return management’ one, which seek to reduce as much as possible risks and impediments. In addition to implementing at national level practices, based on past successful experiences, Member States could also share more information on return management processes, the people who have had removal orders served against them, on the experience of implementing different measures and incentives to encourage voluntary return and on conditions in third countries. Finally, the cost of return operations and of assistance and support in these countries before and after their return could be shared more across Member States.

How many returnees are there and how much do Member States spend on return management?

As detailed above, the estimated number of illegal immigrants in Europe is probably of several million. In the context of consultations for the drafting of the current proposal, information on the numbers of people returned and the cost involved were requested from Member States. Available data are not comparable but they do provide an illustration of existing needs, as well as of the share of responsibilities between Member States.

If the number of return decisions issued every year is taken as a departure point, available data of the Member States for 2002 to 2004 point to an annual average of around 680 thousand return decisions. (See table 7 in the Annex)

For voluntary return under an IOM Assisted Voluntary Return Programme the costs range from € 500 to 900 per person on average. This would include tickets, escorts (where necessary) and a small reintegration grant. The issue of costing of enforced return presents far more difficulties, inter alia because geography and the means of transportation differ across Member States. During the consultation process mentioned above, data on direct costs on return was made available, as follows:

- In Spain, a total of € 38 million was spent in 2004 (transportation and escorts), of which € 22 million on charter flights; the total number of people returned was 27.600.

- Expenditure in France was slightly less in the same year, totalling € 34 million, the greatest item being commercial flights (€ 33 million). It must be noted however that these costs on the one hand, cover not only transportation but also translation costs and costs of refusals at airports, but on the other, only relate to the top 5 nationality. The total number of people returned of these five nationalities was 16.500.

- In Ireland, 599 persons were removed at the cost of € 1,7 million , excluding staff cost, last year. It must be borne in mind that from this country few direct flights to the country of return can be effected.

- In Hungary, about € 198.000 was spent on removal by air for 286 persons in 2003, including the tickets, tickets of the escorts and insurance and air tax.

- In Belgium, a total of 7.923 people were forcibly removed in 2003, for a total cost of € 7,5 million. This includes transportation and escorts (including where necessary medical cost).

- In the Netherlands in 2003 € 9,6 million was spent on flight tickets, travel costs of escorts, charter costs and other travel costs. The estimated number of persons affected by these operations was 19.400.

- Finally, in Germany data based on the federal budget point to a total of almost € 18 million (covering transportation only) for around 30.000 people removed in 2004. It must be pointed out that removals are generally in the competence of the Länder, and expenditure at this level can be reasonably estimated at € 20 million.

In general, the cost of enforced return varies from case to case. Some expulsion are relatively simple (without escorts, IATA tariff), others can amount to € 10.000 per person, in particular in the absence of a direct flight.

The purpose of this illustration is to assert existing needs in this regard rather than setting global amounts at EU level. It is believed that European intervention in this field should aim at compensating the unfair burden placed on some Member States in the return of illegally staying third country nationals, and thus the bulk of the expenditure should remain at national level. Integrated return management will then seek to intervene where the needs are greatest and where a coordinated approach may yield the greatest benefits.

From the data gathered on the cost of return, an average cost of return, including only the cost of arranging transport for returnees back to their countries of origin, together with their escorts has been calculated and amounts to around € 1.000 per person returning in most Member States. In a country like Germany, it is somewhat more, at around € 1.600 a person, while in the new Member States, it tends to be less (around € 600 in the Czech Republic and just under € 350 in Latvia and Lithuania). Much depends here, however, on the main countries to which people are returned, the length of the flights involved (whether for example, to Eastern European countries or the Far East) and whether they are direct flights or not. The overall cost of return operations, including the cost of detention and of other activities, undertaken both in EU Member States and in third countries, is clearly much higher than this, though insufficient data are available to indicate how much higher it is likely to be.

The cost also depends on whether the return is voluntary or enforced. This is the case even if the estimation is limited to the cost of transportation of returnees and that of their escorts alone. Although the extent of the difference shown by the data collected varies significantly, the cost of enforced return, as might be expected, is in almost all cases higher than when the return is voluntary. The difference, therefore varies from enforced returns costing an estimated 23% more per person than voluntary returns in Germany (this figure is very approximate because it includes a broad estimate of expenditure by the Länder, which bear much of the costs of enforced returns, as well as by Federal Government) and around 90% more in the Czech Republic and Malta to three times more in Spain and almost 17 times more in Hungary[3].

On present levels of return, the estimated average cost of transportation would imply a total cost on this item alone of over € 200 million in the EU as a whole – and clearly several times higher as regards the total cost of return policy.

1.4 Immigration and the integration of legally staying third country nationals

According to EUROSTAT, in 2003 the population of the EU 25 increased by 1,9 million, an annual rate of 0,4%, mainly due to net migration of 1,7 million, while the natural increase was only 0,2 million[4]. In 2003, net migration in the EU 25 was +3,7 per 1.000 inhabitants. Cyprus (+17,9‰), Spain (+14,2‰) and Italy (+8,9‰) registered the highest rates. Positive net migration was recorded in all Member States except Lithuania (-1,8‰), Latvia and Poland (both -0,4‰) and Estonia (-0,3‰). These figures clearly show that migration has become the main element of demographic growth in the EU.

Migration presents particular challenges - in each Member State of the EU national citizens live side by side with migrants. These people are either citizens of another Member State, exercising their right to move and reside freely within the territory of another Member State, or nationals or stateless persons from countries outside the EU. In the latter case, they are regarded as ‘third country nationals’ and they are subject to specific rights and obligations, defined under national law, in accordance with the provisions of Community legislation on visas, asylum and immigration.

Migration from third countries into the EU is a daily reality in each Member State: on 1 January 2003 the population of the EU 25 was 454.6 million of which 15.2 million were third country nationals. This is more than double the number of EU nationals who have chosen to reside in another EU Member State[5]. While the relative share of third country nationals varies considerably in Member States, all are confronted with the phenomenon of increasing ethnic, cultural and linguistic diversity in their societies and the need to manage ‘intercultural relationships’.

Migrants, and in particular third-country nationals, represent a specific group in need of assistance to integrate because they face different problems to other disadvantaged groups, including ethnic minorities, many of whom may have been living in the EU for many years as EU citizens. Third-country nationals are often not familiar with European values, and may have very limited knowledge of the language of the host community and of ways of doing everyday things. Equally importantly, they sometimes do not have the same rights and obligations as nationals of an EU Member State. Indeed, third-country nationals may be liable to severe sanctions, in some cases involving a withdrawal of the right to abode, if they do not comply with regulations relating to them or do not follow specified procedures. For example in some Member States third-country nationals are obliged to fulfil certain integration measures in order to obtain residence permit.

Currently, migrants from third countries are not necessarily fully integrated into EU societies in the widest sense of the term. This is demonstrated, inter alia , by:

- the large number of immigrants living in deprived urban areas in poor housing conditions which also display concentrations of high unemployment, low income and welfare dependency;[6]

- the relatively low level of public involvement of third-country nationals in social and cultural activities and their tendency to have less contact with natives than their own ethnic community[7];

- the relatively small number of immigrants participating in the decision making processes including their lack of political rights;

- the relatively large number of newly arrived third-country nationals who do not know the language of the host country and therefore are in need of language tuition[8];

- the marginalisation of migrants with a different religious background, with a potential for leading to alienation and extremism;

- evidence of continuing racism and xenophobia in society and of the fact that many immigrants are still met with hostility;

- many children of migrants tend to perform relatively poorly in school and have higher drop out rates[9]. The share of 18-24 years old having lower secondary education or less secondary education was twice as high for third-country nationals than for EU nationals in 2002[10];

- current employment rates show that the proportion of third-country nationals in work is significantly lower than that of EU nationals (the main exceptions are Greece, Italy, Portugal and Spain[11]);

- the disproportionate number of third-country nationals of who are in employment who are employed in the lower skilled segments in the labour market e.g. low quality service jobs[12].

The importance of stronger policies to promote the integration of immigrants in the EU is clearly reflected in the Hague Programme. Legislation safeguarding the rights of long-term residents, legislation on family reunification and legislation on combating discrimination, racism and xenophobia, have all been agreed upon and are now transposed into national law or shortly will be. These directives constitute the backbone of EU integration policy.

The Commission intends to present later this year a Communication on the setting up of a coherent European framework in the field of integration of third-country nationals. Based on the recently agreed common basic principles for integration, the common legislative EU framework for immigration of third country nationals and ahead of the new constitutional Treaty, this Communication will outline new ideas for future co-operation between Member States at EU level in the field of integration of third-country nationals. The Communication will at the same time complement the legal basis put forward for the European Integration Fund.

What do Member States spend on welcoming new migrants?

It is almost impossible given the data available to compare expenditure on integration activities across Member States. It is particularly difficult because Member States tend to have different participants in their integration programmes and a different coverage of those potentially in need of assistance in this respect. In addition, expenditure on integration activities is undertaken not only by central government but also by the regions, local authorities and municipalities. Perhaps most importantly, the types of activity and programme included in such activities are very different in different countries: some providing much more extensive and detailed content than others. Nevertheless, the following examples give an idea of the scale of expenditure on integration programmes across the EU:

- In the city of Vienna, expenditure in 2003 on welcome information packages amounted to € 38.000 for an estimated 2.950 participants from among migrants granted permission to reside in the city, while a further € 420.000 was spent on language tuition.

- The Flemish Community in Belgium spent € 8.800.000 on introduction activities (excluding language tuition) for third-country nationals in 2003. 4.638 people participated, which implies an estimated cost per person of € 1.897.

- In Denmark, € 108.600.000 was spent in 2003 on introduction courses (civic orientation, language tuition and labour market training) for newly arrived immigrants and refugees. Some 28.898 persons took part in the programmes, implying a cost per person of € 3.758.

- In the Netherlands, about € 50.000.000 was spent on introduction courses (civic orientation, language tuition and labour market training) for newly arrived immigrants and refugees in 2003. 16.991 people participated giving a cost per person of € 2.942.

- In Finland, expenditure on integration programmes, including language tuition, civic orientation, labour market training for third-country nationals granted permission to stay amounted to € 18.700.000 in 2003. With about 10.000 participants, the cost per person amounted to € 1.870.

- In the Czech Republic, total expenditure on introductory activities for recognised refugees amounted to € 292.707 in 2003. With 39 participants, this implies a cost per person of around € 7.500. This figures, however, includes the costs of housing them.

- In Poland. € 269.052 were spent in 2003 on introductory activities for recognised refugees. 384 persons participated so that the average cost per person amounted to € 700.

1.5 Asylum: upholding standards on international protection without fail

The enlarged EU receives about 75% of the asylum claims registered by the UNHCR in its ‘top 36 asylum countries’. Over the last two years the EU has on average received slightly more than 75.000 asylum seekers each quarter a year, amounting to 300.000 asylum applications a year.

Historical factors influencing the rise and fall in application numbers in the EU in the 1990s include the fall of Communism, the conflicts in former Yugoslavia and changes in individual States which brought about particular pressures to flee (e.g. Somalia, Afghanistan, Rwanda, DRC, Iraq). While asylum flows in Member States decreased from a high point in the early 1990s, the importance of the management of asylum as a political issue increased in most Member States and that is reflected in the level of public scrutiny and the weight of national legislation brought to bear on the issue in the main EU destination countries in the late 1990s and the early years of this century.

Over the last five years the EU has developed common standards affecting the obligations of Member States with regards to the reception of asylum seekers and asylum procedures, the integration of refugees and of beneficiaries of subsidiary protection. These standards will also have repercussions for the voluntary return of (rejected) asylum seekers, refugees and displaced persons. Member States are seeking enhance efficiency and decrease the duration of asylum procedures. The new common standards aim at reducing divergences in interpretation of the needs for protection and thereby ensuring that persons who are genuinely in need of protection receive equivalent treatment throughout the EU, wherever they apply for asylum or acquire a right of abode. Such a level playing field is essential in an EU where the Dublin II Regulation, partially due to the implementation of Eurodac, has put in place an effective system for determining the one and only Member State responsible for examining an asylum claim, thus reducing secondary movements and forum shopping, in an area without internal borders.

The situation of Member States faced with an influx of asylum seekers is very different, due to a variety of factors, such as the relative level of wealth, the geographical position, the existence of historic links with third countries of origin of asylum seekers, and the presence on the Member State’s territory of existing communities of refugees and third country nationals from certain countries of origin. These conditions, as well as national differences in legal frameworks related to asylum, despite the level playing field established under the first stage of the Common European Asylum System, may continue to lead to secondary movements between Member States, of asylum seekers or persons benefiting from international protection, even if they do not effectively have the right to circulate throughout the EU.

Moreover, there has been a trend in Member States with significant arrivals to enhance efficiency and decrease the duration of asylum procedures and reception. The new climate of ‘efficiency’ and potential policy competition in this regard has heightened the challenge of correctly implementing common standards introducing the right to housing and daily allowance for asylum seekers and a right to admission based on Community definitions for refugees and beneficiaries of subsidiary protection, bearing in mind human rights and humanitarian considerations. This development reinforces the case for ensuring a balance of efforts between Member States in receiving and bearing the consequences of receiving persons in need of international protection.

What is the cost of asylum systems?

It is difficult to have precise and comparable economic data on the cost of asylum systems in Member States, as, firstly, these figures are considered highly political at Member State level, and are therefore not widely used. Methods vary in calculation of such costs; some Member States include in their estimates all costs related to asylum related measures (including running costs of administration of the asylum procedures, social welfare and health benefits of asylum seekers and refugees etc); others only count the costs related to direct provision of services to asylum seekers or refugees. For example, Germany estimated that the cost of their reception system in 2002 was € 1,5 billion, while Ireland estimated the total cost of their reception, integration and voluntary return measures at € 200 million. In France, the cost of providing reception facilities alone to asylum seekers was estimated at € 170 million. It is clear, however, that the total cost of maintaining a quality asylum system can have a significant bearing on public expenses.

2. WHAT ARE THE MAIN POLICY OBJECTIVES?

To address the challenges described above, the following general objectives need to be set out in a coherent EU framework involving external borders, visas, illegal immigration, integration and return:

- Establish support for the adequate implementation at national level of control and surveillance of external borders within a common integrated border management system for those Member States who endure a lasting, heavy, financial burden due to the long and difficult stretches of their external borders and an exceptional migratory pressure on these borders;

- Introduce support for Member States who implement the common visa policy, with a view to increasing the effectiveness of consular authorities, enhancing their synergies and reducing the burden on border control authorities;

- Stepping up measures in third countries preventing illegal entries through the external borders and thus reducing the incidence of illegal immigration to the benefit of all Member States;

- Increase the effectiveness of the implementation at national level of the fight against illegal immigration by supporting the return of illegally resident third country nationals within the common framework of an integrated return management and in accordance with common standards on return procedures;

- Promote the integration of third-country nationals legally residing in Member States through support to national integration strategies, with a view to ensuring the full potential of third country nationals to their own benefit and to the benefit of the host society in terms of economic and social aspects sand civic citizenship;

- Ensure a balance of efforts between Member States regarding their international protection obligations by supporting a common asylum policy based on an equitable sharing of responsibility and financial burden between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.

These should be EU objectives, as it is in the common interest of all Member States that they will receive support for implementing such objectives, as explained in section 1.

They can be further developed into the following specific objectives for respectively external borders, return, integration and asylum.

2.1 External borders

Given the uneven division of responsibility between Member States for controlling the external borders of the EU, the policy objectives to achieve are:

1. to implement in the Member States the common integrated border management system;

2. to make it easier and faster for authorised travellers to enter the EU in conformity with the Schengen acquis while protecting the EU against illegal entry;

3. to achieve a uniform application of the EU law by Member States and an overall efficiency of national border guards in carrying out their tasks in accordance with EU law;

4. to enhance the efficiency of the issuing of visas and the implementation of other pre-frontier checks.

These general aims can be translated into a series of specific and operational objectives of which the key ones, in terms of added value and cost-effectiveness for the European Union, would be the following:

- improving efficiency of control and surveillance measures through the use of state of the art technology;

- establishing the necessary infrastructures to improve efficient flow management at border crossing points;

- enhancing the capacity of the human resources allocated to border management, for instance by implementing the common core curriculum to be set up by the Agency;

- improving the coordination and information exchange at national level for all relevant authorities involved in securing effective border control;

- reducing as much as possible illegal entries at external borders through operations in third countries, in cooperation with these countries;

- enhancing the coordination and cooperation between Member States as regards the implementation of the common visa policy.

Actions to be funded could include land, air and sea border and pre-frontier infrastructure (e.g. construction, renovation or upgrading of border crossing points, border stations and other related buildings, e.g. centres for immigrants apprehended when crossing the border illegally; permanent border surveillance systems at green or blue borders etc.); operating equipment related to border control (laboratory equipment, document examination equipment, detection tools), means of transport for the surveillance of external borders, like vehicles, helicopters, planes, ships etc.; IT and other communication systems needed for real time exchange of information between relevant authorities and exchange programmes and training of border guards, immigration officers and consular officers etc.

2.2 Return

The policy objective in this area is to support and encourage Member State efforts to improve the management of the voluntary and forced return of illegal third country nationals in all aspects, taking account of Community legislation in this area. Indeed, once agreement will be reached on the planned Directive on common standards on procedures in Member States for returning illegally staying third country nationals (a proposal is due to be presented by the Commission to the European Parliament and Council this spring), the effective and uniform application of the agreed common standards should be fostered and Member States actions relating to this objective should be able to benefit from Community financing as far as these actions are also covered by the specific objectives of the upcoming financial instrument

In particular, the following specific objectives should be pursued:

1. to promote the introduction of integrated return management procedures by all Member States and to improve the operation and organisation of existing procedures;

2. to enhance co-operation between Member States in the conception and implementation of integrated return management procedures and practices;

3. to promote an effective and uniform application of common standards on return.

These aims will be pursued through actions such as:

- the development of effective and lasting operational co-operation between Member State authorities and consular and immigration services in third countries, with a view to facilitating the receipt of travel documents for the return of third country nationals and ensuring speedy and successful removal procedures;

- developing co-operation between Member States in the collection and dissemination of information on the country of return to potential returnees;

- increasing the number of illegal migrants opting to return voluntarily by encouraging this through better targeted and more attractive assisted voluntary return programmes and other means;

- simplifying enforced return procedures and improving the capacity of courts to deal with cases, with a view to reducing the period of detention of those awaiting forced removal without infringing their basic rights;

- formulating joint integrated return plans, including implementing joint voluntary return programmes in respect of particular countries or regions and arranging joint flights, thus reinforcing the message of an effective management of migration flows by the EU;

- implement joint return operations, thus making better use of existing national resources and expertise for the common good of the fight against illegal immigration throughout the EU;

- encouraging exchange of information, support, advice and best practice between Member States in dealing with the return of people to specific countries and/or of particularly vulnerable groups;

- carrying out joint measures enabling the reception of readmitted persons in the country of origin or former residence;

- developing measures to ensure the effective reintegration of people in their country of origin or former residence after they return;

- improving the capacity of competent authorities to enforce removal decisions with full respect for the rights of the people concerned and for their dignity in accordance with relevant EU standards;

- ensuring the provision of specific assistance to vulnerable groups such as children, the elderly, people with disabilities, pregnant women and those who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

2.3 Integration of third-country nationals

The Common Basic Principles on Immigrant Integration which were adopted by Governments at the JLS Council on 19 November 2004 following the Hague Programme underline the need for a holistic approach to integration. It is stated that not only within Member States but also at the European level, steps are needed to ensure that the focus on integration is a mainstream consideration in policy formulation and implementation, while at the same time specific policies for integrating third-country nationals are being developed.

In accordance with the common basic principles, the specific policies for integrating legally residing immigrants in Member States are intended to:

- Provide opportunities and create incentives for immigrants to integrate and overcome language difficulties and/or problems relating to understanding the norms, values and traditions of the host society or satisfying job requirements;

- Be pro-active in the design and implementation of national introduction programmes and activities, the capacity building of migrant organisations and of their interlocutors at all levels of government;

- Recognise new challenges in migratory pressure and address them through a successful integration strategy, which is required either because the Member States concerned have experienced a significant influx of migrants over the last few years, such as the Member States in the south of the EU, or because they are at the start of a period of increased immigration, as in the case of some of the Member States which acceded to the European Union in 2004;

- Overcome shortcomings in infrastructure at local, regional and national levels to deal with migratory inflows, and promote coherence between policy design and its implementation on the ground;

- Combat intolerance and prejudice among the host population, and to raise awareness of the importance of diversity in society, including among public and private sector service providers;

- Promote dialogue and consultation between political decision makers and local communities on the challenges faced by migrants, about their needs and circumstances and about ways of improving their position.

To achieve such policies, in particular to promote the integration of third country nationals having recently arrived and been admitted by a Member State to reside in its territory, the following specific objectives, which turn into concrete action the common basic principles (see footnotes), should be pursued :

1. Facilitate the organization and implementation of admission programmes for migrants, strengthening their integration component and anticipating the needs of third-country nationals.

2. Contribute to the organisation and implementation of introduction programmes and activities for third country nationals, by way of capacity building, policy development and implementation.[13]

3. Increase civic, cultural and political participation of third country nationals in the host society, in order to promote their active citizenship and recognition of fundamental values.[14]

4. Strengthen the capacity of Member States’ public and private service providers to interact with third country nationals and their organizations and to answer better the needs of different groups of third country nationals

5. Strengthen the ability of the host society to adjust to increasing diversity by targeting integration actions at the host population.[15]

6. Strengthen the capacity of Member States to monitor and evaluate integration policies.[16]

These objectives and the concrete measures for pursuing them, it should be emphasised, are complementary to the actions envisaged under the European Social Fund. The latter are directed at strengthening economic and social cohesion by supporting Member State policies aimed at achieving full employment, improving quality and productivity at work and promoting social inclusion as well as at reducing regional employment disparities. In the case of migrants, who are specifically recognised as a disadvantaged group on the labour market in need of special support, their focus is primarily on increasing their participation in employment through guidance and language training and the validation of competencies acquired abroad as well as through the provision of suitable training. ESF actions, therefore, are designed to integrate migrants into society largely through improving their access to employment, which is essential if they are to avoid social exclusion. The activities envisaged under the present programme are intended to support such actions by focusing specifically on the civic, cultural and political dimension of social integration, which is equally necessary if migrants are to participate fully in society.

2.4 Asylum

The existing financial instrument supporting the implementation of the common asylum policy is the European Refugee Fund. Its objective is set by the Treaty establishing the European Community (Article 63.2.b): to promote a balance of efforts between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.

More specifically, the aim of the ERF is to express solidarity at Community level and to alleviate the pressures felt by Member States most affected by reception of refugees and displaced persons in facing the consequences of this reception, which includes reception conditions during asylum procedure (and ensuring fair and efficient asylum procedure), integration of recognised refugees and promoting voluntary return solutions for rejected asylum seekers and refugees who wish to return to their country of origin. Furthermore, the European Refugee Fund is one of the instruments of a Common Asylum policy, and as such the measures supported by the Fund should seek to complement and support EU legislation in order to support the progressive implementation of a Common Asylum System at all levels (common legislation and development of common best practices).

The ERF is an important part of an overall policy for building a common European asylum policy. Reducing divergence between asylum systems and progressive implementation of common standards at EU level will have a cost, which will be greater for Member States with a larger number of asylum seekers and refugees, but also to new Member States. The Community should contribute to correcting those imbalances and to supporting Member States in complying with their obligations[17]. Finally, account must also be taken of the other objectives being formulated in related policies, such as the integration of third country nationals and management of illegal immigration.

3. WHAT ARE THE POLICY OPTIONS?

3.1 External borders

No policy scenario

From the magnitude of existing needs and the risks of no action as detailed above, the no-policy scenario was given only limited consideration. Indeed, if no action is taken, some Member States will bear a declining share of the costs of controlling external borders as the Schengen Area is extended, while others bear an increasing share whilst being less able to bear this cost. As the new Member States become full Schengen members and the eastern external land border moves further east, responsibility for border control, and the related costs, will shift from countries such as Germany, Austria and Italy to countries such as the Baltic States, Poland, Slovakia, Hungary and Slovenia. Needless to say, these countries’ GDP per head is considerably below the EU average. Also, the external border will become longer and more difficult to control due to geopolitical reasons, while migratory pressure could increase. Migratory pressure, that includes illegal immigration, is also bound to increase at the Mediterranean borders, requiring an important budgetary effort from countries such as Spain, Italy and Greece, who have long coasts facing the African continent and Turkey, and in the main international airports.

Voluntary arrangements for transferring resources between Member States

EU intervention in this field is therefore considered necessary to preserve and strengthen solidarity between Member States. Theoretically, this solidarity with regard to the control of external borders could be achieved by establishing voluntary arrangements for transferring funds from those which do not have external borders, or at least not extensive ones, to those which do. However, the complete voluntary nature of such a scheme is unlikely to make it viable in practice.

Legislative action or action through “soft law”

Another option to be considered would be legislative action (e.g. reinforcement of common standards and of cooperation and information exchange mechanisms) or incentive action in a ‘soft’ form (e.g. a Commission Action Plan as a basis of a peer review system). These options would increase coordination at European level, and could even contribute to a greater convergence in this area. But it fails to meet the stated objectives of solidarity and burden sharing, which seem to require that EU intervention has a financial element to it.

To expand the budget and extend the role of the FRONTEX Agency

An alternative to overcome the problems attached to voluntary funding arrangements would be to expand the budget and extend the role of the FRONTEX Agency, to include the funding of Member State activities. This could even lead to the creation of a corps of European Border Guards. This option would help to strengthen cooperation and would allow achieving high standards of control in all Member States. However, increasing the responsibilities of the Agency to include financial transfers could create accountability problems, as considerable resources will have to be transferred from the EC budget to be implemented not by the Commission but by an autonomous Agency, while creating an autonomous European Border Guard corps could be difficult to justify in terms of subsidiarity.

The chosen option: an External Borders Fund

The most relevant policy option seems to be the establishment of a financial solidarity mechanism at Community level to support Member States who bear a lasting and heavy financial burden by being responsible for controlling external borders for the benefit of the Union as a whole. This Fund should be designed to be a concrete expression of EU solidarity by providing financial assistance to those Member States which apply the Schengen provisions on external borders, in addition to those on internal borders (the dismantling of controls on entry). It would accordingly represent an explicit recognition of the tasks they perform in carrying out checks on people entering the EU from third countries and border surveillance not only in their own interests but on behalf of all Member States which have dismantled internal border controls.

Support from the Fund should be extended from the outset to new Member States, as their external borders are operational since their accession even if they have undertaken to remove border controls at a later stage when they are judged ready to do so. It should also extend to the need for Member States to implement Community legislation in relation to specific situations which have arisen as a result of enlargement (the most notable example is of Russians who need to cross Lithuania to reach Kaliningrad). The Fund should, in addition, provide support for managing visas and other similar activities undertaken before people reach the border, whether these are carried out in cooperation with other Member States or not. The efficient management of such activities by the consular services of Member States in third countries is an integral part of a common integrated border management system, which is aimed at facilitating legitimate travel into the EU while preventing illegal entry.

Objective criteria need to be established to allocate funds to Member States. These criteria should take account of the various elements which add to the burden of control on the Member States, in particular, the length of external land and maritime borders, the number of authorised border crossing points, the number of travellers crossing and the extent of pressure caused by people refused entry. The criteria should also take account of the challenges posed by the risk of illegal entry affecting each border, taking into account the geopolitical situation, typology and geography. The assessments made by the Common Centre in Finland and in the future by the FRONTEX Agency will be very helpful in this regard.

From a subsidiarity point of view, such a Fund would support Member States in carrying out the various tasks involved in external border control while not interfering with their responsibilities in respect of determining who they allow to enter their territory.

Actions to be funded could include border crossing infrastructures and related buildings (e.g. border stations, helicopter landing places or lanes, etc.); operating equipment (laboratory equipment, document examination instruments, detection tools, mobile or fixed terminals for consulting SIS and national systems, etc.); means of transport for the surveillance of external borders; equipment for real time exchange of information between relevant authorities; ICT systems; exchange programmes and training of border guards, immigration officers and consular officers; etc.

3.2 Return

No policy scenario

If no action is taken at EU level, the risk is that return policy in most Member States will continue to be driven nationally and not develop to its full potential. Synergies will remain unlocked and opportunities will be missed to develop better national strategies, to build cooperation on the basis of national good practices and to jointly implement operations or test new measures. A large number of people who have been declared to be illegal residents will remain in the country concerned, with adverse effects on efforts both to implement a managed immigration policy and to ensure good relations between third country nationals and the host community.

Regularisations instead of returns

An alternative policy option involves regularisation . From time to time, some Member States have decided to regularise certain groups of third-country nationals residing illegally by allowing them to register their presence in the country and granting them permission to remain. While this overcomes the problem of encouraging or forcing them to return to their country of origin or former residence, it does not tackle the main problems, as set out above, and is likely to encourage rather than deter future illegal migration. The Commission has published in 2004 a Study on the links between legal and illegal migration (COM(2004)412 final) where the issue of regularisations has been examined through the concrete experience of wide-scale regularisations carried out by eight Member States. The result of the analysis is that such programs do not appear to have had a long term effect in reducing the levels of illegal migrants; on the contrary, it appeared that they may serve as an additional pull factor, since the stocks of illegal migrants seem to replenish regularly and new regularisation programmes are required. Furthermore, such wide-scale measures have implications also for other Member States of the EU, due to the abolition of internal borders control. This fallback on the other Member States will be even more important once the long-term residents Directive[18] will be applicable as of January 2006: in fact this Directive foresees that, once acquired the long-term resident status after five years of legal residence in a Member State, migrants will be able to move to another Member State for working, study or other reasons. Finally, as in most cases Member States tend to issue renewable temporary permits, the persons concerned could fall back into illegal status if they later cease to fulfil the conditions of the permit. In some Member States a regularisation operation was followed by an increasing number of family reunification applications.

Harmonisation of legislation on return

The Commission is currently elaborating a proposal for a Directive on common standards on procedures in Member States for returning illegally staying third country nationals. The Directive will introduce a level playing field in the EU on return procedures. Such standards cannot address the problems identified in terms of the effectiveness of the implementation of return policy, but will be another essential part of the comprehensive EU return policy as outlined in the Council Action Plan on Return.

In this context, solutions may be proposed which also have an impact on financing return. On the one hand, the possibilities for mutual recognition already offered by Directive 2001/40/EC may be extended to all kinds of return decisions and removal orders and the financial compensation mechanism agreed upon in Council Decision 2004/191/EC of 23.2.2004 may be made applicable to all these cases. Alternatively, a second Member State may ask the first Member States to take back an illegally staying third country national, thus passing on responsibility for the whole return procedure including the charge of all connected costs. These possibilities will, however, not be an alternative because they would not tackle the real problems. They would not constitute a solidarity mechanism and not contain the needed support to the efforts made by Member States to improve the management of return in all its dimensions.

Solidarity between Member States on a voluntary basis

Member States could be asked to transfer funds voluntarily from their national budgets to assist countries with a large number of illegal migrants where the scale of the return problem is greatest, but it seems unrealistic to expect Member States to comply with such a voluntary policy at large scale

Comprehensive implication of the External Border Agency

Article 2(1)(f) of Council Regulation (EC) N° 2007/2004 of 26 October 2004 establishing a the FRONTEX Agency sets out that the Agency shall provide Member States with the necessary support in organising joint return operations. Article 9 paragraph 1 provides that, subject to the Community return policy, the Agency shall provide the necessary assistance for organising joint return operations of Member States. The Agency may use Community financial means available in the field of return, and under paragraph 2 of the same provision it is stated that the Agency shall identify best practices on the acquisition of travel documents and the removal of illegally present third country nationals.

As envisaged under the current legislation, the support of the Agency for return would consist of inter alia coordination of return operations between Member States (for instance an online register on joint flights) but there is clearly no intention to reshape the efforts by Member States to develop and implement effective national return policies. The main purpose of the Agency is to support Member States in their tasks regarding border control. The Agency does not have the resources to take over (significantly) national action on return.

Even if resources were available, the Agency should not be put in charge of improving the design and implementation of national return operations of 25 Member States other than through an exchange of information on best practices. A far reaching involvement of the Agency with the daily return practices by Member States would be incompatible with the principle of subsidiarity which dictates that action should be taken at the most appropriate level, in this case at the level of immigration services, (local) police or border guards responsible for the return of illegally residing third country nationals. A comprehensive implication would probably require the Agency to have the capacity to enforce administrative orders on behalf of the Member States and confront the Agency in its work with the different national policies and practices.

Compensation under existing financial instruments

Existing financial instruments, in particular the ERF, AENEAS and ARGO, might potentially be used to support the actions envisaged under this programme.

The ERF, however, is limited to the voluntary return of asylum seekers and persons benefiting from international protection in the Member States due to its legal basis of Article 63(2)(b). This legal basis does not allow the ERF II to fund the return of third country nationals that are not or no longer in need of international protection (such as failed asylum seekers). The actions covered by the ERF may concern in particular information and advice about voluntary return programmes and the situation in the country of origin and/or general or vocational training and help in resettlement. Rejected asylum seekers make up the most significant proportion of potential target population for return in many Member States which face particular problems in returning this group. The political implications arising from sustained failure to do so are considerable.

The aim of AENEAS is limited to giving specific and complementary financial and technical aid to third countries in order to support their efforts to better manage migratory flows in all their dimensions. It is particularly intended for third countries actively engaged in the preparation or in the implementation of readmission agreements initialled, signed or concluded with the European Community. The programme is included into the external relations activities. AENEAS and the planned return Fund could be complementary, insofar as the Return Fund would focus on the return act itself (and necessary short-term financial needs) whilst AENEAS could provide for structural assistance ensuring sustainable long-term solutions for the returned person in the third country.

The aim of ARGO is limited to the promotion of administrative cooperation between national authorities and will end in 2006.

Therefore, none addresses the integrated return procedures which are the objective of the policy and to use the three for separate actions in the areas they cover is likely to be inefficient, even leaving aside their limited budgets and, in the case of ARGO and AENEAS, their limited duration.

The chosen option: a Return Fund

A distinct fund established with the particular objective of supporting an integrated return management policy seems best equipped to achieve the objectives set out above. By creating a separate instrument which is targeted at return, the specific problems identified with respect to persuading or coercing illegal migrants to leave the country in which they are residing can be addressed.

The Return Fund will need to work in complementarity with the other financial instruments mentioned above which will remain from 2007 onwards and address return issues: the ERF and the successor instruments to AENEAS. Each instrument will address specific aspects of the return to their country of origin or former residence.

Lessons learnt from the Afghanistan Return Plan on complementarity

The work carried out by the Commission and the Member States in the framework of the Afghan Co-ordination Return Group (ACRG) has helped to identify and understand the advantages and the challenges associated with managing return operations in an EU framework. The experiences with the implementation of the Afghanistan Return Plan is still limited, but the lessons learnt so far are relevant in the wider context of the further development and implementation of the general EU return policy and confirm the possible positive interaction of the Return Fund (focusing on short-term return related financing) and AENEAS (focusing on sustainable long-term solutions) as complementary and mutually reinforcing financial instruments.

For further information see the Commission staff working paper ‘Review of the Afghanistan Return Plan (SEC (2005)340).

The European Return Fund will seek to promote the development of integrated set of return measures aiming at putting in place in Member States an effective programme. This should cover all phases of the return process, from the pre-departure phase and the return as such to the reception and reintegration in the country of return and should be tailored to take account of the specific situation in different countries. At the basis of such a programme should be an analysis of the situation in the Member State(s) with respect to the targeted population, a realistic assessment of the potential for return and the cooperation with the countries of return, a planning and evaluation mechanism with respect to the return process of the targeted population and cooperation throughout the process with relevant stakeholders at national, European and international level, such as UNHCR and IOM.

Priority should be given to cooperation between Member States to secure such an approach, given the cost-effectiveness and the synergies involved.

Accordingly, the measures to be supported, when they form part of such an integrated return approach, would include:

- In all cases : pre-return information, procurement of indispensable travel documents, costs of necessary pre-return medical checks, costs of travel and food for returnees and escorts, including medical staff, accommodation for escorts, specific assistance to vulnerable groups such as children or people with disabilities, costs of transportation to the final destination in the country of return and co-operation with the authorities of the country of origin, former residence or transit;

- Additionally in the case of forced return the costs for temporary accommodation of returnees and their escorts from the participating Member State in the organising Member State prior to the departure in case of joint return operations.

- Additionally in the case of voluntary return: comprehensive pre-return information, assistance and counselling as well as essential expenses before return and initial expenses beforer return,

- Additionally, and where considered appropriate by Member States , initial expenses after return, transport of the returnee’s personal belongings, adequate temporary accommodation for the first days after arrival in the country of return in a reception centre or a hotel if necessary, training and employment assistance and limited start-up support for economic activities where appropriate.

- As regards the application of the common standards: education and training of staff in the competent administrative, law enforcement and judicial bodies as well as secondments of these categories of staff from other Member States;

- As regards actions relating to the cooperation with consular authorities and immigration services of third countries, cost of travel and accommodation in the Member States for the staff of the authorities and services responsible for the identification of third country nationals and the verification of their travel documents.

3.3 Integration of third country nationals

No policy scenario

The no-policy scenario would entail a serious risk that the problems described above would not be effectively tackled insofar as the civic, cultural and political dimension of integration would remain insufficiently addressed, even though the ESF would continue to assist migrants to integrate into the labour market.

- The large variation in the effort devoted to the social integration of migrants across the EU is likely to continue. Without systematic exchange of information and additional resources, Member States with inadequate or ineffective policies are unlikely to be able to learn from those which have developed successful strategies.

- The damaging effects of inadequate integration in these Member States in particular on third-country nationals themselves – both those already resident and newcomers –would, therefore, be likely to continue.

- Accordingly, the EU economy as a whole would continue to lose out by failing to integrate migrants properly into society which is likely to weaken the extent to which they are able to participate fully in employment and contribute to the generation of economic wealth as well as to competitiveness through the diversity they bring both to the labour force and entrepreneurship.

As stated above, the need for policy intervention has also been recognised in the Hague Programme and by the Common Basic Principles which underline that “the failure of one individual Member State can have adverse implications for other Member States and the European Union” and that it is in the interest of all Member States to pursue effective integration strategies.

Harmonisation of legislation on integration

Another option was harmonisation of legislation on integration: the Constitutional Treaty provides a legal base for European laws or framework laws to establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third country nationals residing legally in their territories. However, Article III-267-§3 excludes “any harmonisation of the laws and regulations of the Member States”.

Open-method of co-ordination

The Commission proposed an open method of co-ordination in respect of Community immigration policy in July 2001. The European Council in Laeken responded in December 2001 by calling for a reinforcement of exchange of information on migration. The Commission services, therefore, introduced consultative meetings to provide a forum for discussion on migration issues in the EU[19]. Establishment of an open-method of co-ordination, would considerably strengthen the current exchange. It would go beyond consultation and exchange of information as Member States would set national targets for integration policy within the framework of guidelines adopted by the Community. However, while this option would increase co-operation between Member States, it would not enhance their capacity to address the challenge of integration of third country nationals and hence there would be no guarantees that financial resources would be made available to support the implementation of EU priorities.

The option of a financial support by a Community instrument

Following the adoption of the legislative framework establishing a common immigration policy and in view of the solidarity provision in the new Constitutional Treaty, setting-up a financial instrument would provide support and incentives for the Member States to develop integration policies for integration of third-country nationals admitted in accordance with the legislative framework laid down in both national and Community law.

Here, different models for financial support were considered:

1. Integration of third-country nationals is funded via joint projects and Community actions (e.g. the ARGO framework model or the INTI programme):

2. Integration of third-country nationals is solely funded within a mainstreaming instrument, such as the European Social Fund (ESF)

3. Integration of third-country nationals is funded within a separate instrument expressing solidarity between Member States on the basis of the number of third country nationals legally present in the Member States.

Model 1: integration of third-country nationals is funded via joint projects and community actions (e.g. the ARGO framework model or the INTI programme)

Community actions are subject to centralised management, and specific conditions apply: Trans-nationality and co-operation between a number of Member States. Such an instrument in respect of integration would preclude funding measures at national level and it would therefore be difficult to take account of national challenges and priorities.

The Common Basic Principles state that the precise integration measures a society chooses to implement should be determined by individual Member States. A financial instrument merely focusing on transnational aspects and co-operation would therefore not achieve the objective of being an instrument supporting the implementation of the Common Basic Principles at national level.

Model 2: Integration of third-country nationals is solely funded within a mainstreaming instrument, such as the ESF

Until now the ESF has considered the issue of third country nationals only in terms of their potential social exclusion. Third country nationals could be included within the categories of disadvantaged groups in general and could, under this heading, be a target group for integration into the labour market.

The proposal for the ESF for the period 2007 to 2013[20] makes a specific reference to migrants, in particular under the general objective of enhancing access to employment of job seekers and inactive people, preventing unemployment, prolonging working lives and increasing participation in the labour market of women and migrants.

Even if the ESF has strengthened its focus on migrants, there remains a serious question mark over whether it is likely to deliver to the extent required to support all aspects of integration of third-country nationals in the widest sense of the term, i.e. social and political as well as economic:

- First, the ESF specifically focuses on labour market integration and it does not specifically include actions which ensure integration of third-country nationals into other aspects of life (in particular, civic, political, cultural and religious aspects of the integration of migrants);

- Second, it does not extend its actions to third country nationals with no immediate affiliation with the labour market. Those who are admitted for family reunification purposes may not necessarily have an affiliation with the labour market, or at least not immediately. This is in particular the case for women, who are often the drivers for integration of their children. It must be noted that family related migration is more than half of the admission in the EU of third country nationals.

- Third, studies and evaluations carried out in Member States have shown that the integration strategies developed in the past, which were based on the premise that social integration will follow naturally from employment and economic integration, have not proved adequate. The earlier mentioned indicators show that there is still a need to target social integration of third country nationals specifically, in particular their participation in civic, cultural and political life. Consequently, the strategies for this form of integration have to be further developed and consolidated before a mainstream approach can be successfully adopted.

- Fourth, there is no guarantee that Member States will choose to give sufficient priority to the social and cultural integration of third-country nationals over and above their integration into the labour market, even if this may be necessary to complement measures directed at the latter.

- Fifth, the extent of migration and the distribution of migrants across Member States (the solidarity element) is not a criterion for allocation of the ESF resources. Funding is not, therefore, necessarily concentrated on those Member States which have the greatest needs in this regard, even though the integration of migrants might play a role in the allocation of resources within countries.

Consequently, even under a new ESF taking into account the specific characteristics of the target population concerned, there would not necessarily be financial assistance to address fully the challenges identified in paragraph 1.4.

Model 3: Integration of third-country nationals is funded within a separate instrument

It follows from the above that a specific instrument is required which addresses the aspects of integration not covered by the ESF. By creating a separate instrument which is targeted at third-country national and linked with solidarity principles, the specific challenges identified with respect to immigrants’ lack of integration can be addressed. In particular, a separate instrument will affect third-country nationals’ opportunities to meet integration requirements in their host country, provide access to information and guidance on civic and cultural issues and ensure that immigrants have the opportunity to integrate into aspects of society other than the labour market, in particular for those not working or allowed to work.

A targeted instrument, setting out specific objectives and allocating the resources on the basis of specific criteria relating to the target population, will increase the policy-impact of EC expenditure. The ability of a specific instrument to have a strong and direct impact in the policy area concerned is illustrated by the contribution made by the AENEAS programme to the Union’s relations with third countries. While the Community’s external cooperation activities and policies contribute indirectly to dealing with migratory pressure and a more efficient management of migration flows, the AENEAS programme has developed a specific additional response to the needs of third countries in their efforts to manage more effectively all aspects of migratory flows. In particular, the programme enables the Community to respond flexibly and effectively to migratory challenges and to annually adjust priorities, paying heed to the general principles of Community cooperation and development strategies regarding third countries in a coherent and complementary way. To ensure consistency, mechanisms have been devised to prevent overlaps with financial instruments for the Union’s relations with third countries. AENEAS and an instrument promoting integration of third-country nationals in the EU could be complementary, insofar as the Integration Fund would focus on third country nationals present in the EU, while AENEAS could - for instance - help ethnic diasporas in the EU to keep in touch with their home countries and to undertake investment there.

The chosen option: a separate instrument on integration for third country nationals in complementarity with the ESF mainstreaming approach

The latter has therefore been considered as the relevant policy option. To respond to the specific challenges listed above in the area of integration of third-country nationals, the instrument would intervene in six specific areas:

- Improving the implementation of admission programmes. Facilitating a rapid and smooth integration of those migrants who have been explicitly invited to contribute to Member States’ societies. In many Member States it is recognised that these persons in particular provide a valuable contribution to economic growth. Their arrival is commonly seen as important to counteract the prospective decline in the EU’s work force in future years. Action should be taken to prepare their integration even before they arrive in the territory of the Member States.

- The implementation of introduction programmes and introductory activities. The early stages of a third country national’s residence in the Member State are of particular importance. Introduction programmes and activities express the investment host societies are willing to make in the future, by: providing opportunity for migrants to learn about their host country and the ways of doing things, so increasing their chances of being self-sufficient as soon as possible and of finding employment; increasing the incentive and motivation for migrants to integrate; making it easier for young migrants, in particular, to integrate and so prevent identity problems and reduce delinquency: facilitating the development of targeted and flexible integration policies and activities, taking account of the special needs of third-country nationals and encouraging the development of new and innovative approaches to integration.

- Promoting active citizenship through civic, cultural, religious and political participation. These activities can contribute by increasing the knowledge of migrants of the history, traditions, norms, values and local customs of the host society, facilitating dialogue between different religious communities; encouraging migrants to take responsibility and an active part in local community life, increasing their understanding of political processes and encouraging them to participate in decision making processes and increasing their possibilities of applying for citizenship. In short, active citizenship can highlight skills and open up avenues to third country nationals to realise their full potential in host societies.

- Supporting capacity building in public and private sector service providers in Member States for third country nationals. Much interaction between the latter and other citizens takes place in such mainstream organisations as schools, hospitals, communal housing societies etc. Opening up these providers through diversity management will reinforce the motivation and willingness of third country nationals to participate in society. This can be achieved by: making service providers more aware of diversity issues and helping them to develop inter-cultural communication skills; increasing co-operation between local, regional and national authorities responsible for integration and helping to bring about better coordination between the design of policy and its operation on the ground; raising awareness of the benefits of putting in place an effective policy for managing diversity; increasing co-operation between local, regional and national authorities responsible for integration and helping to bring about better coordination between the design of policy and its operation on the ground; raising awareness of the benefits of putting in place an effective policy for managing diversity.

- Helping society to adjust to diversity by making the host population more aware of the true facts about migration and about the people concerned, increasing tolerance towards other cultures and religions and so helping to strengthen social cohesion, increasing dialogue and interaction between migrants and the host population and actively involving private bodies (including SME) in the integration process.

- Policy development, monitoring and evaluation of policies and strategies by: stimulating the collection of relevant data on migration in the Member States so providing the basis for informed discussion and decision-making; ensuring that the effectiveness of integration efforts are assessed on an ongoing basis and that programmes are responsive to immigrants needs; enabling policy-makers across the EU to learn from past experience not only of policies pursued in their own countries but also of those pursued elsewhere, so helping to improve the policies implemented in the future across Member States.

The Integration Fund will build on past experience, namely the pilot projects on integration of third country nationals (INTI) started in 2002 with a budget of €4 million. Nearly 300 applications were received in the first two years, applying for more than €85 million whereas the total budget available was only €10 million.

The pilot projects complement the policy outlined in the Communication on Immigration, integration and employment adopted in June 2003 in which the Commission presented its views on how to elaborate comprehensive and multi-dimensional policies on the integration of legally residing third-country nationals. According to the Communication integration policy should be based on two fundamental underlying principles: First of all that the principle of subsidiarity prevails clearly demonstrating that the primary responsibility for the elaboration and implementation of integration policies lies with the Member States, and secondly, the holistic approach which will ensure integration of immigrants into all aspects of society and which requires that a two-way approach - implying that the responsibility for integration lies both with the receiving society and with the arriving immigrant - is applied. The pilot projects supports networks and the transferral of information and good practices between Member States, regional and local authorities and other stakeholders in order to facilitate open dialogue and identify priorities for national integration policies and the actions also support new innovative projects which promote integration of third-country nationals.

To continue the encouragement of a more structured policy development in the field of integration as initiated by INTI, the financial instrument should be complemented by actions facilitating co-operation between Member States and exchange of best practices (Community actions).

The Integration Fund will work in complementarity with the ESF and the ERF. In particular, as emphasised above, while the European Social Fund will be directed at supporting specific actions to reinforce the social integration of migrants through increasing their access to employment especially, the Integration and Refugee Fund will support activities not covered by the ESF, such as participation in civic and cultural life and respect for diversity, in the first case, and measures addressed to assisting asylum seekers, in the second case.

3.4 Asylum

The discussion on the policy options available to achieve solidarity in the field of asylum policy was inevitably influenced by the existing financial instrument, the European Refugee Fund. At the time of its renewal last year, different options have been considered and will be briefly recalled here. Options such as “no policy scenario”, or the simple replacement of the ERF I by a non-financial instrument (such as open method of coordination) were rejected, as they did not satisfactorily address the requirements of the Treaty regarding burden-sharing. The policy options envisaged were therefore all based on the principle of financial support of the Community to the Member St