Green paper on a community return policy on illegal residents
Date: 2002-04-10
Institutions: European Commission
Subjects: migration policy, repatriation grant, residence permit, restriction of liberty

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 10.04.2002
COM(2002) 175 final

GREEN PAPER

ON A COMMUNITY RETURN POLICY ON ILLEGAL RESIDENTS

(presented by the Commission)

GREEN PAPER

ON A COMMUNITY RETURN POLICY ON ILLEGAL RESIDENTS

Table of Contents

Foreword

1.

2.

2.1.

2.2.

2.3.

2.4.

2.5.

3.

3.1.

3.2.

3.3.

3.4.

3.5.

4.

4.1.

Introduction................................................................................................................ 5

Part I – Return as an Integral Part of a Comprehensive Community
Immigration and Asylum Policy............................................................................... 6

The Broader Context of Return.................................................................................... 6

Immigration and Return ............................................................................................... 7

Asylum and Return ...................................................................................................... 8

Human Rights and Return.......................................................................................... 10

Co-operation with Countries of Origin and Transit on Return and Readmission...... 10

Part II- Approximation and Improved Co-operation on Return Among Member
States ......................................................................................................................... 11

Common Standards .................................................................................................... 11

Readmission Rules Among Member States............................................................... 17

Transit Rules Among Member States ........................................................................ 18

Operational Co-operation........................................................................................... 18

Return Programmes.................................................................................................... 20

Part III - Towards a Common Readmission Policy .............................................. 22

Readmission Agreements and Readmission Clauses in Association or Co-operation
Treaties....................................................................................................................... 23

4.2.

Transit and Admission Arrangements and Agreements With Other Third Countries24

5.

Conclusion................................................................................................................. 25

Annex

2

Foreword

The  European  Council  on  14  and  15  December  in  Laeken  asked  the  Council  in  its
Conclusion  No.  40  –  inter  alia  -  to  develop  an  action  plan  on  the  basis  of  the
Commission’s  Communication  on  a  Common  Policy  on  Illegal  Immigration  of  15
November  2001.  Consequently  the  Council  adopted,  on  28  February  2002,  a
comprehensive plan to combat  illegal  immigration  and  trafficking  of human  beings
in the European Union. This plan contains also a section on readmission and return
policy, in  which  this policy  area is identified  as  an integral  and vital component in
the  fight  against  illegal  immigration.  The  Council  action  plan  asks  for  progress  on
the issues of transit and readmission, the identification of illegal residents, the issue
of travel documents for return purposes and common standards for return procedures.

In  the  aforementioned  Communication  on  illegal  immigration  the  Commission
already  announced  the  release  of  this  Green  Paper  referring  to  the  need  to  create
common standards and to initiate common measures on return.

The  Green  Paper  builds  upon  the  elements  as  defined  in  the  Council’s  action  plan
and explores various issues related to the return of third-country nationals. In Part I it
is  emphasised  that  a  Community  return  policy  has  to  fit  in  and  to  complement  the
existing Community policies on immigration and asylum as described in the relevant
Communications  from 
the  Commission,  whose  policy  goals  are  explicitly
acknowledged once again. The various dimensions of voluntary and forced returns in
relation to migration, in the context of asylum and the relation to third-countries, are
briefly  sketched.  The  following  parts  are  focussed  on  the  future  co-operation  on
return of illegal residents among Member States (Part II) and the development of the
readmission policy together with third countries (Part III).

Due to the very complex and sensitive nature of return issues this paper only intends
to open a discussion on the return  of illegal  residents  and should not be  seen as  an
effort to cover all dimensions connected with the return of third-country nationals.

The discussion on the return of illegal residents might start with a reflection on the
following general issues before tackling some indicative questions and looking at the
issues in more detail, as laid down in the following sections of the Green Paper:

(1) 

(2) 

(3) 

(4) 

The  development  of  a  common  return  policy  as  a  contribution  to  a
comprehensive immigration policy as advocated for by the Commission in its
Communication of 22 November 2000.

The  compatibility  of  a  common  return  policy  with  the  need  for  protection
under  international  and  European  law  in  the  evolving  common  European
asylum system.

The  implementation,  with  regard  to  return,  of  Conclusion  No  40  of  the
European  Council  in  Laeken,  calling  for  the  integration  of  the  policy  on
migratory flows into the European Union’s foreign policy.

The necessity of common standards for return procedures and the question of
whether they should be legally binding.

3

(5) 

(6) 

The  improvement  of  the  co-operation  of  Member  States’  services  and
whether a future financial instrument could be conducive to that end.

The  determination  of  the  elements  of  a  common  readmission  policy,  which
should encompass a balanced co-operation with the third countries concerned.

4

1.

INTRODUCTION

Following the establishment in the Treaty of Amsterdam of Community competence
in  the  areas  of  migration  and  asylum,  the  Heads  of  State  and  Government,  at  the
European  Council  in  Tampere  in  October  1999,  called  for  the  development  of  a
common  EU  policy  on  these  issues.  Since  then  the  Commission  has  put  forward
proposals  for  a  Community  asylum  and  immigration  policy  based  on  a  two-step
approach: the adoption of a common legal framework as outlined in the Treaty  and
the development of an open co-ordination method.

The  objective  of  the  Commission’s  proposals  on  immigration  policy  is  to  ensure
more efficient management of migratory flows at all their stages. The comprehensive
approach which has been put forward focuses on the adoption of common procedures
for the legal admission of third-country nationals, involving closer dialogue with the
countries  of  origin  and  supported  by  more  co-ordinated  integration  policies  at
national  level.  The  underlying  assumption,  which  has  been  generally  supported  by
the  Member  States  in  the  debate  on  the  Communication  of  November  20001  is  a
recognition that migratory pressures will continue and that, in the light of the current
economic situation and of demographic forecasts, migration has a role to play in the
economic and social development of the EU.

In the field of asylum, the aim is the establishment of a Common European Asylum
System,  based  on  a  full  and  inclusive  application  of  the  1951  Geneva  Convention,
thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle
of non-refoulement. Harmonisation is divided in two steps leading in the longer term
to a common asylum procedure and a uniform status for those granted asylum.

The  Commission  has  emphasised  that  these  policies  must  be  accompanied  by
additional  measures  to  combat  illegal  migration  and  in  particular  smuggling  and
trafficking  of  human  beings.  The  Commission  has  recently  made  comprehensive
its
suggestions  for  the  reinforcement  of  common  actions  in  this  area  in 
the  Common  Policy  on  Illegal  Immigration2.  In 
this
Communication  on 
Communication, the Commission has underlined that the  return and readmission of
third-country nationals, who are illegally resident in the EU, must be an integral part
of  the  common  policy.  Article  63  (3)  b  TEC  lays  down  that  the  Council  adopt
measures  on  illegal  immigration  and  illegal  residence,  including  repatriation  of
illegal  residents.  In  addition,  the  Treaty  of  Amsterdam  has  also  integrated  the  –  in
this respect rather weak - Schengen acquis on return issues into the European Union,
in particular Article 23 of the Convention implementing the Schengen Agreement3 4.

1 
2

3

4

Cf. COM (2000) 755 final and COM (2000) 757 final of 22 November 2000.
COM (2001) 672 final of 15 November 2001.
Cf.  EU  Schengen  Catalogue,  External  borders  control,  Removal  and  readmission:  Recommendations
and best practices, Council of the European Union, 28 February 2002.
See also the proposal for a Council directive relating to the conditions in which third-country nationals
shall have the freedom to travel in the territory of the Member States  for periods not exceeding three
months,  introducing  a  specific  travel  authorisation  and  determining  the  conditions  of  entry  and
movement for periods not exceeding six months (COM (2001) 388 final) of 10 July 2001, which will
communitarise Article 23 of the Schengen Convention.

5

                                                
As  announced  in  the  Communication  on  Illegal  Immigration  the  Commission
considers that the issue of return merits an in-depth reflection in order to develop a
coherent  Community  approach  which  takes  into  account  the  complexities  of  this
important  subject.  In  preparation  for  this  Green  Paper  various  publications  by
international  organisations,  governmental  bodies,  non-governmental  organisations
and the academia have been taken into account5. The purpose of this Green Paper is
to examine the complex return issues for people residing illegally in the EU and to
put  forward  suggestions  for  a  co-ordinated  and  efficient  policy  based  on  common
principles  and  standards,  and  respectful  of  human  rights  and  human  dignity.  The
premise  is  that  a  return  policy  is  needed  in  order  to  safeguard  the  integrity  of  the
legal and humanitarian admission systems.

2.

PART  I  –  RETURN  AS  AN  INTEGRAL  PART  OF  A  COMPREHENSIVE  COMMUNITY
IMMIGRATION AND ASYLUM POLICY

2.1.

The Broader Context of Return

The return issue is a vast one, which covers a large number of situations. They can be
broadly divided in two categories. The first one concerns persons legally residing in
a  country,  who,  after  a  certain  time,  express  a  wish  to  return  to  their  country  of
origin. In several cases, these persons face difficulties in doing so, because they lack
financial means or have lost everything in their country of origin or because it would
affect their possibilities of returning to the Member State concerned either to take up
residence  again  or  for  shorter  periods  to  visit  family  and  friends.  People  who  have
spent many years working legally in the EU might want to return to their country of
origin on retirement but are prevented from doing so because this would affect their
pension  entitlements.  Another  situation  might  apply  to  entrepreneurs  and  highly-
skilled workers who after some years of legal residence would like to be able to leave
the  host country  for lengthy  periods  (temporary  return).  A  specific  situation  in  this
category  concerns  recognised  refugees  who,  when  the  situation  in  their  country  of
origin has stabilised, would like to return, and, in particular for skilled people, take
part  in  its  reconstruction  and  development.  This  is  now  the  case  for  Afghanis
residing in Europe. The EU is currently working on a programme to help them in this
objective.

In  general,  concrete  administrative  solutions  and  supportive  programmes  could  be
developed  to  help  migrants  who  wish  to  return.  Ways  to  encourage  these  kinds  of
situations could be explored in the dialogue with countries of origin, in particular to
improve the benefits they can obtain from the emigration of their citizens. As part of
the  open  method  of  co-ordination  for  the  Community  immigration  policy6,  the

5

6

Cf.  e.g.  among  many  others:  Recommendation  No.  R(99)  12  of  the  Committee  of  Ministers  of  the
Council  of  Europe  on  the  return  of  rejected  asylum  seekers;  IOM,  The  return  and  reintegration  of
rejected  asylum  seekers  and  irregular  migrants,  Geneva,  May  2001;  UNHCR,  Legal  and  practical
aspects  of  the  return  of  persons  not  in  need  of  international  protection,  Geneva,  May  2001;  ICMPD,
Study  on  comprehensive  EU  return  policies  and  practices  for  displaced  persons  under  temporary
protection, other persons whose international protection has ended and rejected asylum seekers, Vienna,
January  2002;  IGC,  Modular  Structures  on  Return  (not  published);  Nascimbene  (ed.),  Expulsion  and
detention of aliens in the European Union countries, Milan, 2001.
COM (2001) 387 final of 11 July 2001; see section 3.3..

6

                                                
Commission  proposed  European  guidelines,  which  would  encourage  policies  to
support patterns of mobility between the EU and third countries:

(cid:1)  Reviewing  legislation  which  restricts  the  possibility  for  legal  migrants  to  move

freely between their country of residence and their country of origin;

(cid:1)  Encouraging  migrants  to  take  an  interest  in  development  projects,  business  and

training ventures in their countries of origin;

(cid:1)  Financial  and  other  support,  including  the  provision  of  venture  capital,  to  assist

returning migrants to re-settle in their countries of origin.

The second category of return concerns persons with no specific protection need and
residing illegally in the EU. 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 EU voluntarily, or forced to do so. It
might well be the case that illegal migrants or rejected asylum seekers volunteer to
return. This could be encouraged and supported by specific schemes.

This  Green  paper  focuses  on  this  second  category  i.e.  the  return  of  persons
residing illegally in the EU, in its two aspects: forced or voluntary. The return of
persons legally residing in the EU is not dealt with here. However,  for many third-
country  nationals  legally  residing  in  the  EU  eventual  return  may  be  a  desirable  or
relevant  option.  This  is  an  important  topic  in  its  own  right  and  deserves  also  to  be
discussed  intensively,  in  particular  with  regard  to  the  effects  in  relation  to  the
countries  of  origin.  It  will  be,  therefore,  subject  to  further  reflection  from  the
Commission at a later stage.

2.2.

Immigration and Return

In its Communication on a Community Immigration Policy of 22 November 20007,
the  Commission  suggested  that  the  EU  could  best  achieve  its  objective  of  more
efficient  management  of  migration  flows  through  a  comprehensive  approach.  The
Commission  argued  that,  as  part  of  a  comprehensive  immigration  policy,  the
adoption  of  common  procedures  for  labour  migrants  could  to  a  certain  extent  also
reduce  pressure  on  channels  for  humanitarian  admission  and  that  illegal  migrants
would  be  further  deterred  by  more  effective  joint  action  against  smuggling  and
trafficking. The Commission noted that the practice of  regularising illegal  migrants
who met certain criteria, notably that they were employed in a Member State, exists
and that this could be seen as an acknowledgement of labour market needs and as a
reflection on the difficulties of implementing return policies successfully.

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

7

COM (2000) 757 final.

7

                                                
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.

To  all  extents  possible,  priority  should  be  given  to  voluntary  return  for  obvious
humane  reasons.  In  addition,  voluntary  return  requires  less  administrative  efforts
than forced return.

However, the forced return of illegal residents can have a signal effect both on illegal
residents  in  the  Member  States  and  on  potential  illegal  migrants  outside  the  EU.
Combined  with  further  efforts  to  combat  undeclared  work  in  the  EU,  more
transparent  procedures,  awareness  raising  campaigns  against  smuggling  of  human
beings  and  better  information  about  legal  channels  for  admission,  efficient  return
policies  can  encourage  potential  migrants  to  prefer  to  explore  the  possibilities  of
obtaining  legal  residence  in  the  EU  and  discourage  those  who  do  not  fulfil  the
necessary  requirements  for  legal  immigration.  It  can  also  help  to  ensure  public
acceptance for more openness towards new legal immigrants against the background
of more open admission policies particularly for labour migrants.

2.3.

Asylum and Return

Voluntary return is one of the three long- term solutions identified to the problem of
refugees,  together  with  integration  and  resettlement.  At  the  same  time,  an  efficient
return policy for persons, whose applications for international protection are rejected,
is needed in order to safeguard the integrity of a common asylum system and of the
common asylum procedure as described in the Commission’s Communication of 22
November  20008.  When  a  person  seeking  protection  has  benefited  from  a  fair,
qualitative  and  comprehensive  procedure,  when  all  protection  needs  have  been
examined  and  if  there  is  no  other  ground  for  a  legal  stay  in  a  Member  State,  the
person  must  leave  the  territory  and  return  to  his/her  country  of  origin  or,  where
appropriate, of transit.

It is in the spirit of the common asylum procedure and the uniform status that persons
seeking protection or having benefited from international protection in the EU must,
in  the  long  term,  expect  comparable  treatment  in  all  Member  States,  according  to
their  respective  situation,  as  far  as  returns  are  concerned.  Improvement  of  the
efficiency  and  quality of  the  asylum  procedure  and  of  the  assessment  of  protection
needs  is  a  prerequisite.  The  effectiveness  of  the  return  policy  must  also  be  seen
against the background of the fact that  although an asylum  claim has been  rejected
on the basis of the Geneva Convention, individuals might be still otherwise in need
of  international  protection.  Putting  in  place  an  appropriate  subsidiary  protection
system is therefore crucial.

Again  voluntary  return  must  be  given  priority.  However,  forced  returns  may  be
necessary  as  a  last  resort.  This  may  also  apply  to  persons  whose  international
protection needs (under refugee or subsidiary protection status or under a temporary
protection scheme) have ceased to exist, after they have enjoyed such protection for a
period  of  time  in  a  Member  State.  These  returns  must  also  be  in  compliance  with
international  protection  and  the  human  rights  of  returnees.  This  comprises  the
obligation to provide protection against refoulement under the Geneva Convention of

8

COM (2000) 755 final.

8

                                                
1951  on  the  status  of  refugees  and  the  1967  Protocol,  in  particular  Art.32  and  33
thereof. Refugees shall not be expelled lawfully from the territory save on grounds of
national security or public order. In addition, the ECHR, in particular Art.3 thereof,
and  the  respective  case  law  of  the  European  Court  of  Human  Rights  must  be
mentioned  in  the  context  of  the  prohibition  of  torture  and  inhuman  or  degrading
treatment or punishment as well as Art. 4 of the Charter of Fundamental Rights.

Art.18  and  19  of  the  Charter  of  Fundamental  Rights  of  the  EU  are  also  relevant.
According to Art. 18 the right to asylum shall be guaranteed with due respect for the
rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967
relating to the status of refugees and in accordance with the Treaty establishing the
European  Community.  Art.  19  deals  with  the  protection  in  the  event  of  removal,
expulsion  or  extradition  and  firstly  states  that  collective  expulsions  are  prohibited.
Secondly, no one may be removed, expelled or extradited to a State where there is a
serious risk that he or she would be subjected to the death penalty, torture or other
inhuman or degrading treatment or punishment.

Large  return  movements  to  countries  of  origin  of  people  who  have  benefited  from
protection after a preceding mass influx situation due to, most of time, a situation of
conflict, which usually go together with reconstruction and development challenges,
may require, in some cases, certain specific solutions or a gradual approach in host
Member  States  and  in  countries  of  origin  and  transit  such  as  postponing  the
implementation  of  the  removal  decisions,  allowing  exploratory  visits  or  stays,
drawing  up  assistance  “packages”,  from  basic  ones  (information,  transport,  small
financial  allowances)  to  more  developed  and  tailored  ones  prepared  some  time  in
advance (training, incentives for non-skilled, skilled and high skilled persons etc…),
and transit and transport agreements.

The  open  method  of  co-ordination  for  asylum  as  suggested  by  the  Commission9
could also be utilised for return issues relating to rejected asylum seekers and persons
who have been under protection regimes. Some of the areas of examination relating
to voluntary and – where appropriate - forced returns might be relevant for return of
illegal residents:

(cid:1)  by  identifying  measures  to  improve  co-operation  between  receiving  states,
countries  of  origin,  the  UNHCR,  IOM  and  NGOs  with  a  view  to  facilitating
voluntary and involuntary returns.

(cid:1)  by  developing  services  providing  information  and  helping  to  prepare  people  for

return. This might include evaluating the merits of exploratory visits.

(cid:1)  by  looking  at  ways  of  improving  the  number  of  expulsion  decisions  that  are
actually enforced, possibly by setting specific targets and assessing their practical
impact.

(cid:1)  by preparing guides to good practice on the various issues raised by the return of
individuals,  including  involuntary  repatriation  (escorts,  means  of  transport,
detention conditions prior to removal, etc.), which might serve as a basis for EU-
wide guides.

9

COM (2001) 710 final of 28 November 2001, see section 5.2..

9

                                                
2.4.

Human Rights and Return

A European return policy should be fully respectful of human rights and fundamental
freedoms and as such be seen in the context of  the European Union's human rights
policies both within the European Union and in its external relations. Article 6 of the
Treaty  on  European  Union,  reaffirms  that  the  European  Union  “is  founded  on  the
principles  of  liberty,  democracy,  respect  for  human  rights  and  fundamental
freedoms, and the rule of law, principles which are common to the Member States”.

Both  the  1950  European  Convention  for  the  Protection  of  Human  Rights  and
Fundamental  Freedoms  (ECHR)  and  the  Charter  of  Fundamental  Rights  of  the
European  Union  proclaimed  in  Nice  in  December  200010  contain  provisions  which
are applicable to a policy on return of illegal residents (Art. 3, 5, 6, 8 and 13 of the
ECHR  and  Art.  3,  4,  19,  24  and  47  of  the  Charter  of  Fundamental  Rights).  The
articles specifically relevant to all forms of international protection have already been
described in the section on “Asylum and Return”.

Furthermore,  illegal  residents  must  have  adequate  possibilities  to  lodge  an  appeal
before a court during the return procedure. In this context, Art. 6 of the ECHR and
Art. 47 of the Charter of Fundamental Rights, which ensure the right to an effective
remedy and to a fair trial, are  relevant. Human rights issues are at stake  also in the
context  of  detention  of  illegal  residents:  the  principle  of  judicial  control  over
detention must always be respected, in accordance with Art. 5 of the ECHR.

Family  life  is  protected  by  Art.  8  of  the  ECHR  and  by  Art.  7  of  the  Charter  of
Fundamental  Rights;  it  should  also  be  recalled  that  the  rights  of  the  child  deserve
special  consideration,  in  accordance  with  Art.  24  of  the  Charter  of  Fundamental
Rights and the Convention for the Right of the Child of 1989; in all actions related to
children, the child’s best interest must be a primary consideration.

Finally, another issue that deserves careful consideration is the protection of personal
data  as  enshrined  in  Art.  8  of  the  Charter  of  Fundamental  Rights  and  the  existing
provisions on the protection of personal data.11

2.5.

Co-operation with Countries of Origin and Transit on Return and Readmission

A  successful  return  policy  regarding  illegal  residents  depends  on  fruitful  co-
operation  with  the  countries  of  origin  or  transit  concerned.  By  its  very  nature,  the
mutual understanding and co-operation of all responsible authorities involved have to
be developed. This co-operation is critical at various stages and levels of the return
process.  For  example,  assistance  is  needed  at  administrative  level  to  obtain  return
travel  documents  for  illegal  residents  who  are  not  in  possession  of  valid  travel
documents.  In  addition,  when  arriving  in  the  country  of  return,  the  readmission
process at the points of entry, often at airports, needs support. In fact, many countries
co-operate on a very open and pragmatic basis and facilitate returns.

10

11

OJ C 364 of 18 December 2000, p. 1.
Cf.  the  Directive  1995/46/EC,  OJ  L  281  of  23  November  1995,  p.  31;  the  Council  of  Europe
Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of
Personal Data; and – when appropriate – the legally non-binding Recommendation No.R (87) 15 of the
Committee  of  Ministers  of  the  Council  of  Europe  regulating  the  use  of  personal  data  in  the  police
sector.

10

                                                
However,  other  countries  are  more  reluctant  to  readmit  returnees  and  often  require
more extensive administrative procedures to determine the nationality or the identity
of the person concerned. In such cases it might be helpful to negotiate a readmission
agreement  at  political  level,  which  sets  out  the  practical  procedures  and  modes  of
transportation for return and readmission.

Nevertheless,  the  return  of  illegal  residents  has  also  significant  implications  for
countries  of  origin  and  transit.  The  possibility  of  developing  a  return  policy  that
would avoid negative effects on the situation in  these  countries should be  carefully
considered.  Returning  people on a large  scale could have  a  considerable  impact  on
the development of a country and on the willingness of the authorities to co-operate
in controlling migration. Willingness to co-operate will be enhanced if the countries
concerned  have  an  interest  in  receiving  illegal  residents  back.  The  EU  should,
therefore, consider, which forms of support are adequate also in order to ensure that
returns are sustainable.

In  particular,  willingness  to  voluntary  return  will  also  be  enhanced  if  returnees  are
given  opportunities  in  their  country  of  origin.  Some  voluntary  return  projects  have
seemingly  been  less  successful  because  of  a  lack  of  preparation  in  the  country  to
which  people  were  returned.  At  the  same  time,  it  needs  to  be  recognised  that
returnees must be given assurances that they will have basic means at their disposal
to allow them to settle. In this respect, the establishment of a financial aid system to
bridge the first period after return could be considered.

The European Council in Tampere of October 1999 put emphasis on the need for a
comprehensive  approach  to  migration  addressing  political,  human  rights  and
development issues in countries and regions of origin and transit. Co-operation with
third countries concerned was considered to be the key element for the success of the
external migration policy and this includes the return aspect as well. Furthermore the
European Council in Laeken of December 2001 stressed that the policy on migratory
flows,  in  particular  on  readmission,  must  be  integrated  in  the  EU  foreign  policy.
Return  and  readmission 
therefore,  one  dimension  among  others  of  a
comprehensive EU migration policy towards third countries  and a balance between
admission and readmission needs to be found.

is, 

3.

PART  II-  APPROXIMATION  AND  IMPROVED  CO-OPERATION  ON  RETURN  AMONG
MEMBER STATES

3.1.

Common Standards

Forced return is  a very  significant  encroachment on the  freedom  and  the  wishes  of
the  individual  concerned.  Common  standards  relating  to  expulsion,  detention  and
removal  could  be  set.  These  standards  could  establish  an  adequate  and  similar
treatment  of  illegal  residents,  who  are  the  subject  of  measures  terminating  a
residence, regardless of the Member State, which enforces the removal. In addition,
common standards could also aim to facilitate the work of the services involved and
may  result  in  more  efficient  procedures  by  applying  best  practices  found  in  the
Member States.

The Commission could propose and promote the establishment of common standards
relating to all phases of return. Basic requirements for the ending of legal residence

11

could  be  set,  in  particular  with  regard  to  expulsion  decisions.  Moreover  minimum
standards for detention as well as for removal could be determined. To this end the
Commission  envisages  to  build  upon  the  outcome  of  the  discussion  of  this  Green
Paper  to  prepare  a  proposal  for  a  Council  Directive  on  Minimum  Standards  for
Return  Procedures,  as  has  already  been  indicated  in  the  Communication  on  illegal
immigration12.

3.1.1. Definitions

The terminology in the field of return differs substantially due to differences in  the
legal systems in the Member States. Often the synonymous uses for different terms
create  confusion.  For  clarification  purposes  common  definitions  are  necessary  in
order  to  avoid  any  misunderstandings  which  might  occur.  A  first  set  of  proposed
definitions is attached in Annex I.

Is this first set of common definitions suitable and which further definitions could be
added?

3.1.2.

Ending of legal residence

Enforcement measures are not only applicable for persons who have entered illegally
and have no right  to remain. A number of  persons  receive  expulsion  orders  if  they
have  become  a  danger  to  public  security  or  public  order  e.g.  due  to  conviction  for
serious  crimes.  Overstayers  also,  whose  residence  permits  have  expired,  are  the
subject  of  return  measures  as  well  as  legal  residents  whose  residence  permits  have
been  revoked.  All  these  persons  have  principally  a  legal  obligation  to  leave  the
country immediately or, if a time limit for departure has been set, before the expiry
of the time limit.

The  legal  obligation  to  leave  might  not  be  deemed  to  have  been  met  by  persons
entering  into  another  Member  State,  when  the  entry  and  residence  is  not  permitted
there.  Member  States  should  ensure  that  measures  terminating  illegal  residence  are
applicable throughout the whole EU.

3.1.2.1. Preconditions for Expulsion Decisions

Legal  residence  can  be  terminated  by  an  expulsion  decision  based  on  specified
statutory  preconditions.  Initial  standards  for  expulsion  decisions  have  been  set  in
Directive  2001/40/EC  on  the  mutual  recognition  of  decisions  on  the  expulsion  of
third-country  nationals,  which  was  adopted  in  May  200113.  Under  this  Directive  a
third-country national is the subject of an expulsion decision in cases of a serious and
actual threat to public order or to national security in two groups of cases:

First  an  expulsion  decision  may  be  based  upon  the  conviction  of  a  third-country
national for an offence punishable by a penalty involving deprivation of liberty of at
least one year. Moreover, the existence of serious grounds for believing that a third-
country  national  has  committed  serious  criminal  offences  or  the  existence  of  solid
evidence  of  his  or  her  intention  to  commit  such  offences  within  the  territory  of  a
Member State are sufficient. Secondly a third-country national can be the subject of

12
13 

COM (2001) 672 final., cf. section 4.8..
Cf. OJ L 149 of 2 June 2001, p. 34.

12

                                                
an  expulsion  decision,  when  he  or  she  fails  to  comply  with  rules  on  the  entry  or
residence of aliens.

However, on the basis  of  these  general  definitions  more  detailed,  specific  statutory
grounds for an expulsion decision could be developed. In doing so a distinction could
e.g. be drawn between mandatory reasons for expulsion decisions on the grounds of
extraordinary danger and other legitimate reasons, which would normally lead to an
expulsion decision.

It  could,  therefore,  be  examined  whether  mandatory  expulsion  decisions  could  be
foreseen in the following cases:

1)  if a third-country national has been sentenced by a court to deprivation of liberty
for one or more intentional criminal acts for a period to be commonly defined.

2)  if  the  third-country  national  has  been  sentenced  to  deprivation  of  liberty  for
specified  intentional  criminal  acts  (such  as  production,  transport  and  sale  of
drugs, the smuggling or trafficking of human beings, terrorism and other offences
against national security).

Moreover, it could be assessed whether other compelling reasons, such as the threat
to national or public security, can be identified.

Nonetheless  expulsion  decisions  cannot  be  taken  regardless  of  the  character  of  the
residence  status.  Certain  groups  require  special  protection  against  expulsion.
Privileged third-country nationals such as long-term residents14, family members of a
Union citizen or a national of the Member State concerned respectively and refugees
as well as persons under other forms of international protection may only be removed
for grave reasons of public security and public order. Special protection might also
be envisaged for third-country nationals, who are born in a Member State and have
never lived in their country of nationality. The existence of these grave reasons has to
be thoroughly assessed and adequately motivated in the expulsion decision.

Finally  it  should  be  emphasised  that  in  all  cases  the  individual  situation  has  to  be
taken into account. The human rights of the person concerned and the proportionality
of  the  measure  must  be  adequately  considered,  especially  in  cases  of  extreme
hardship with regard to mandatory reasons for expulsion or unreasonable hardship in
cases of other reasons for expulsion.

Should  more  detailed  preconditions  for  expulsion  decisions  be  set  and  which
elements should they comprise?

In  addition  to  the  groups  mentioned  above,  which  other  groups  require  special
protection against expulsion and what should it look like?

3.1.2.2. Preconditions for Further Ending of Legal Residence

In cases where the residence permit has expired the person should be legally obliged
to  leave  the  country,  if  he  or  she  has  not  obtained  a  renewal  or  another  kind  of  a

14

Cf. Art. 13 of COM (2001) 127 final.

13

                                                
residence  title.  It  could  be  considered  that  an  appeal  against  a  subsequent  removal
order would have a suspensive effect.

The obligation to leave the country could also apply in cases, where persons overstay
their period of visa exemption. Legal residence could therefore end if someone enters
a country legally where a visa is not required but fails to apply for a first residence
permit within the statutory time limits.

The  reasons  for  revocation  of  a  residence  permit  could  be  restricted  by  law  to  a
limited  number  of  significant  situations  such  as  the  absence  of  a  valid  passport  or
passport  replacement,  change  or 
loss  of  nationality  and  other  reasons  of
indispensable  administrative  orderliness.  In  any  case  responsible  authorities  should
be obliged to consider and adequately motivate whether it is proportionate to revoke
the residence permit due to the  changes and if the person  should be  accountable or
not.

Which further preconditions for the ending of legal residence should be set?

Which reasons should justify the revocation of a residence permit?

3.1.3. Detention Pending Removal

In order to safeguard enforcement measures, namely removals, it is often the practice
to make use of coercive measures. It should be noted that all coercive measures are a
significant encroachment on the personal liberty of those concerned. This is true, in
particular, in  the  case of  detention  pending  removal,  which  takes  place  to  facilitate
the  identification  of  the  illegal  resident  concerned  in  order  to  obtain  return  travel
documents or to hinder the illegal resident from absconding before removal.

Minimum  standards  for  detention  orders  could  be  set  at  the  EU  level  defining  the
competence  of  responsible  authorities  and  the  preconditions  for  detention.  They
could cover the identification of the  groups of persons who should generally not or
only under specific conditions be detained. In any case, the detention order should be
issued or confirmed without delay within statutory limits by a judicial authority.

Moreover  minimum  rules  on  the  conditions  of  detention,  in  particular  on
accommodation standards, could be envisaged in order to ensure a humane treatment
in all detention facilities in the Member States. In any case, it should be ensured, if
specific  detention  facilities  are  not  available  or  capacities  are  exhausted,  that
returnees, who are detained in ordinary prisons, might be separated from convicts in
order to avoid any criminalisation.

The possible time limits for detention pending removal differ widely among Member
States between statutory limits of a few days, extendable limits of several months up
to no explicit statutory limits at all. Consequently, the possibility to give indications
on  the  regular  and  maximum  duration  of  detention  for  return  purposes  could  be
further  explored.  Finally,  technical  or  legal  alternatives  for  detention,  which  would
be equally efficient, should also be thoroughly assessed.

Should  binding  standards  on  detention  be  established  and  which  alternatives  to
detention should be considered?

14

Which binding standards in terms of legal preconditions and enforcement relating to
detention pending removal should be set at Community level?

Which groups should not or only under exceptional circumstances be detained?

Which accommodation standards should apply to detained returnees?

Which time limits should be set to limit the maximum duration of detention?

3.1.4.

Removal

Removal  as  the  act  of  enforcing  the  return  of  the  person  concerned  could  also  be
subject of harmonisation efforts at EU level. Minimum standards could be created in
four areas.

First  a  final  safeguard  for  non-refoulement  requirements  according  to  obligations
under  international  law  could  be  considered  in  this  framework  as  long  as  it  is  not
covered by other Community legislation on international protection.

Secondly basic requirements for the physical state and mental capacity of the persons
concerned could be set in order to react properly to an illness claimed by the returnee
immediately before departure or the psychological health of the returnee. In addition
the  treatment  of  vulnerable  groups  such  as  minors  could  be  tackled  as  well  as  the
sensitive  question,  as  to  whether  it  could  be  possible  to  separate  families  during
removal procedures.

Thirdly  enforcement  standards  could  be  envisaged,  viz.,  security  standards  for  the
removal itself, on the use of restraints and on the competencies of escorts.

Finally a mechanism could be considered, how the Member States could streamline
their  present  return  practise  in  relation  to  specific  countries  of  origin,  where  the
actual  situation  makes  removals  questionable  due  to  compelling  humanitarian
reasons  (a  contemporary  example  is  Angola).  Member  States  might  try  to  find  a
common  assessment  of  the  feasibility  for  removals  and  might  establish  a  list  of
countries, to which persons should temporarily not be removed. To that end opinions
of organisations such as UNHCR or UN Administrations (e.g.  UNMIK in Kosovo)
or other relevant actors could be adequately taken into account.

Is there a necessity to incorporate a final safeguard for non-refoulement requirements
in a future Directive on Minimum Standards for Return Procedures?

Which  standards  should  be  considered  relating  to  the  physical  state  and  mental
capacity of the returnees?

Which standards should be defined as far as the use of restraints or the competencies
of escorts are concerned?

Should a common assessment take place regarding the removal to specific countries,
where the actual situation makes removals questionable?

15

3.1.5. Mutual Recognition of Return Decisions

The Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of
third-country nationals15 must be seen as a very first step towards making it possible
for  an  expulsion  decision  issued  by  one  Member  State  to  be  enforced  in  another
Member State without the latter’s having to issue a new expulsion decision.

However,  the  Directive  does  not  imply  a  binding  framework  for  the  mutual
recognition of these decisions. Nevertheless, this is a logical step in order to provide
for  the  efficient  return  of  illegal  residents,  who  have  absconded  after  expulsion
decisions  issued  by  one  Member  State  and  have  been  apprehended  in  another
Member  State.  The  same  legal  consequence  could  be  applied  in  cases  of  illegal
residents, who have to transit through other Member States during removal. It could
be  appropriate  to  set  up  common  legal  standards  in  conjunction  with  the
establishment of a legally binding framework for mutual recognition of all measures
terminating a residence, in particular expulsion decisions.

A binding framework for the mutual recognition of  return  related  administrative  or
judicial acts could be integrated in a future proposal on return procedures by taking
also the necessary progress of harmonisation in the field of asylum duly into account.
This  could  include  appropriate  criteria  and  practical  arrangements  relating  to  the
financial imbalances which may result from such decisions.

Should  a  binding  and  comprehensive  system  of  the  mutual  recognition  of  return
decisions be established, which goes beyond the Directive 2001/40/EC?

Which approach would ensure a fair solution for possible financial imbalances which
may result from the mutual recognition of return decisions?

3.1.6.

Proof of Exit and Re-entry

A satisfactory proof of exit seems important, in particular in cases of voluntary return
to  ensure  sustainable  return  and  to  allow  giving  preferential  treatment  to  voluntary
returnees, namely to avoid that in these cases persons are being banned from a later
legal  re-entry  due  to  a  lack  of  proof  of  their  previous  voluntary  exit.  Different
possibilities for this  proof could be considered.  A certificate  of  crossing  the  border
only  provides  information  that  the  person  concerned  has  crossed  a  border  of  a
Member State, but not that he or she has reached the country of supposed destination.
However, such a certificate can be delivered only at external border posts, since the
abolition  of  internal  border  controls.  Another  option  is  to  develop  incentives  for
returnees  to  report  back  personally  at  a  consular  post  of  a  Member  State  in  the
country of origin.  If  applicable,  the  proof of  exit could also  be issued  by  a  reliable
organisation, which has been involved in the return process. The co-operation of the
returnee  in  this  verification  process  could  be  promoted  in  different  ways.  First
payments  from  a  voluntary  return  programme,  which  are  designated  for  initial
expenditure after arrival or as a start-up could be paid in the destination country only,
either  by  an  authority  conducting  the  voluntary  return  or  a  consular  post  of  the
Member State concerned.

15 

Cf. OJ L 149 of 2 June 2001, p. 34.

16

                                                
The  legal  consequences  of  the  return  on  an  application  for  a  subsequent  re-entry
could  also  be  subject  of  further  consideration.  It  might  be  desirable  to  establish  a
coherent approach to the grounds for future refusal of entry. To that end it would be
necessary  to  define  under  which  circumstances  a  new  application  for  a  visa  or  a
residence  permit  is  excluded.  In  this  context  better  harmonised  prerequisites  of
notification  in  the  refusal  of  entry  list  of  the  SIS  according  to  Art.  96  of  the
Convention  implementing  the  Schengen  agreement  or  respectively  in  a  future
European Visa Identification System could be discussed.

Applying  the  principle  of  the  priority  of  voluntary  return,  it  could  be  considered,
whether a distinction could be introduced, in which persons who returned voluntarily
are  privileged  over  those  who  have  had  to  be  removed.  A  refusal  of  a  future  visa
application  in  order  to  re-enter  into  the  EU  some  time  in  the  future  might  not  be
based  only  upon  the  fact,  that  he  or  she  has  previously  stayed  in  a  Member  State
illegally, if  the person  has  returned  voluntarily.  The  voluntary  return  could  thereby
destigmatize the previous illegal residence. In addition, this legal consequence would
be an incentive to fulfil obligations to report back at the responsible authority in the
country of origin. On the other hand restrictions could be imposed on persons, who
have been expelled or removed. Certain time limits for different categories, such as
third-country  nationals,  which  have  been  convicted  of  serious  crimes,  or  removed
persons, could be introduced.

Should a mechanism be incorporated in a future proposal on return procedures, as to
how  the  exit  of  the  returnee  can  be  proved  and  rules  on  the  legal  consequences  of
applications for re-entry to the EU?

Should  the  prerequisites  for  the  notification  in  the  refusal-of-entry-list  of  the
Schengen Information System be defined? Which categories should be covered?

3.2.

Readmission Rules Among Member States

Apart  from  the  framework  of  the  Dublin  Convention  and  the  mechanism  for  the
determination  of  the  responsibility  for  asylum  claims,  and  Art.  11  of  the  Council
Directive 2001/55/EC on temporary protection16, readmission among Member States
takes  place  solely  on  the  basis  of  bilateral  readmission  agreements  or  informal  co-
operation.17 In 1999 Finland presented an initiative with a view to the adoption of a
Council  Regulation  determining  obligations  as  between  the  Member  States  for  the
readmission of third-country nationals.18 However, this Community approach has not
led yet to concrete results.

The possibilities of progress on the basis of the Finnish initiative or taking forward a
revised proposal could be evaluated in order to establish a clear legal framework for
readmission  in  the  Member  States,  which  appears  to  be  necessary  and  useful.  The
scope of such a readmission system would be broader than the one for determination
of  the  responsibility  for  asylum  claims  according  to  the  Dublin  Convention  or  its

16

17

18

Art. 11:”A Member State shall take back a person enjoying temporary protection on its territory, if the
said person remains on, or, seeks to enter without authorisation onto, the territory of another Member
State during the period covered by the Council Decision referred to in Article 5. Member States may, on
the basis of a bilateral agreement, decide that this Article should not apply.”
But cf. also COM (2001) 127 final., Art. 26 of the proposal on long-term residents.
OJ C 353 of 7 December 1999, p.6.

17

                                                
successor Council Regulation.19 It would comprise provisions on the readmission to
another Member State concerning all illegally resident third-country nationals.

Should  a  legal  framework  for  readmission  among  Member  States  concerning  all
illegal residents be put in place?

3.3.

Transit Rules Among Member States

A common framework could be set for questions relating to transit during the return
process. Often it is necessary to use airports of other Member States due to a lack of
connections to the country of return. In such cases it seems important to establish a
clear  legal  framework  for  the  transit  procedure,  e.  g.  the  use  and  competencies  of
escorts in transit and regulations on failure of return.

In addition it is necessary to find pragmatic solutions for returnees crossing internal
borders of Member States, in particular in cases of voluntary return. This problem is
particularly relevant when the returnee is a national of a country, which is under visa
obligation, and would, therefore, need a visa to transit through the territory of other
Member States. In such a case, the use of a secure standard travel document issued
by  the  Member  State  returning  the  person  –  which  would  be  recognised  by  all
Member States and made equivalent to a visa – could be envisaged to make return as
“unbureaucratic”  as  possible.  An  exemption  from  visa  requirements  might  also  be
envisaged,  bearing  in  mind  that  such  an  exemption  would  imply  a  change  of  the
existing Community legislation.

Which  proposals  on  transit  issues  during  return  procedures  should  be  put  forward
taking current discussions in the Council duly in account?

3.4.

Operational Co-operation

Member States often face numerous hurdles when implementing returns, in particular
forced ones: unknown residence or identity of the person, missing travel documents
or  difficulties  in  co-operation  with  some  states  in  issuing  identity  or  travel
documents;  resistant  behaviour  of  the  returnee;  absence  of  adequate  means  of
transportation.

The  improvement  of  co-operation  between  the  Member  States  could  contribute  to
solve these practical problems. Such co-operation could  be facilitated  by  setting up
the  recent
the  Technical  Support  Facility,  which  has  been  proposed 
Communication  on  the  Common  Policy  on  Illegal  Immigration20  as  well  as  by  a
proper  use  of  the  financial  support  offered  by  the  proposed  action  programme
ARGO.21

in 

How could the operational co-operation at technical level be improved?

19

20

21

Cf. COM (2001) 447 final.
COM (2001) 672 final.
Cf. COM (2001) 567 final.

18

                                                
3.4.1.

Improved knowledge of the phenomenon

Some figures on return are gathered at EU level. According to the available figures
367.552  persons  have  been  removed  in  total  in  the  year  200022,  for  199923  the
number of removed aliens amounts to 324.206 persons. In the framework of assisted
voluntary  return  programmes  conducted  by  IOM  87628  persons  emigrated  in  the
year 2000 out of the EU voluntarily, for 1999 the number is 78273 persons.24

Nevertheless,  complete25  and  more  detailed  information  on  voluntary  return  and
removals  could  be  shared  among  Member  States  based  on  common  definitions,
which allow for a clear comparability. The Commission will bring forward an Action
Plan26 to implement the decision of the Council of May 2001 to introduce a public
annual report on asylum and migration. This would include a section analysing data
on return. A virtual European Migration Observatory, which is now being developed,
might also contribute to an improved knowledge on return.

How could the basis for information on return be further improved?

3.4.2.

Identification and Documentation

The main obstacle for return in due course is unclear identity and the lack of proper
travel  documents.  Countries  of  origin  often  delay  or  deny  the  issuing  of  travel
documents  because  of  missing  information  on  nationality  or  identity.  EU  Member
States have, therefore,  introduced  a standard travel  document for return purposes.27
Nevertheless countries of return do not at all, only exceptionally, or only on a case-
by-case basis, accept this EU laissez-passer and mostly insist on making use of their
own return documents.

A key issue to solve return related-problems is, therefore, the carrying out of suitable
identification measures during administrative procedures, when the person concerned
has an interest in providing correct data. As far as this is not already done Member
States  could  introduce  appropriate  identification  measures  during  visa  application
procedures.  In  its  Communication  on  illegal  immigration,  the  Commission  has
expressed  support  for  the  establishment  of  an  on-line  European  Visa  Identification
System whose data could also be made available for return purposes. This approach
was  endorsed  in  the  Council’s  action  plan  on  illegal  immigration  of  28  February
2002. Such a system must also address the question of the necessary balance between
justified identification needs and the privacy of bona-fide migrants and travellers.

How could the identification of undocumented  illegal  residents  and  the  issuance  of
return travel documents be improved?

22

23

24

25

26 
27

Source: Eurostat - no data available from IRL, NL and UK, missing data from B, DK and LUX.
Source: Eurostat - no data from DK, IRL, NL and UK, missing data from FIN.
Source: IOM. Most assisted voluntary returns have taken place from Germany (year 2000: 68648; year
1999: 58469).
Figures on removed aliens for 2001 cannot be presented yet due to  missing delivery of data by some
Member States.
Cf. also SEC (2001) 602 of 9 April 2001.
OJ C 274 of 19 September 1996, p. 18.

19

                                                
Which  elements  should  be  included  in  the  future  European  Visa  Identification
System to ensure identification of an undocumented illegal resident?

3.4.3.

Role of Immigration Liaison Officers

Immigration liaison officers, who  are posted  in  countries  of  origin  or  transit,  could
also be available for return related tasks. Existing contacts with the local authorities
might ensure a smoother handling of the admission to the country concerned, as well
as  assistance  to  incoming  returnees  and,  where  needed,  escorts.  The  network  of
immigration liaison officers could be further developed to that end.

Could the Member States offer and provide mutual assistance in facilitating returns?

3.4.4.

Best Practices, Training and Information Exchange

The situation of all staff, which is responsible for carrying out the very difficult and
demanding task of return enforcement, could be improved. In that context it should
be stressed that special training could be provided, which enables the staff to conduct
removals in an appropriate manner.

To  that  end  experience  could  be  shared  among  Member  States’  experts  and  staff
involved in both, voluntary return programmes and removal procedures. It could be
considered not only to hold seminars, but also to have joint training of staff.

Furthermore  the  information  exchange  on  concrete  return  operations  could  be  built
up in order to share resources. A Technical Support Facility could also be helpful to
co-ordinate this specific information exchange.

How could the exchange of best practices be improved?

Should the idea of joint training be developed in the area of return?

How could the information exchange on concrete return operation be built up?

3.5.

Return Programmes

3.5.1.

Lessons Learned from the Implementation of Return Programmes

The  Commission  has  experience  in  the  management  of  projects  to  encourage  the
voluntary  return  of  refugees,  rejected  asylum  seekers  and  other  migrants  to  their
countries  of  origin.  Since  1997  many  projects  have  been  financed  both  in  the
framework of the Joint Actions28 and the European Refugee Fund29. The orientation
of these projects has been to finance projects run by government, both at national and
regional level, as well as by international and non-governmental organisations. Thus
the emphasis has been on influencing the individual and his or her family to take the
decision  to  return,  running  the  project  essentially  in  the  Member  State  itself.
Experience showed that it was often very important for the project to have a follow
up  component  in  the  country  of  origin  otherwise  the  returnee  had  a  tendency  to

28 
29

Cf. OJ L 114 of 1 May 1999, p. 2; OJ L 138 of 9 May 1998, p. 6; OJ L 205 of 31 July 1997, p. 3.
Following “ERF”, cf. Council Decision of 28th September 2000 establishing a European Refugee Fund,
OJ L 252, of 6 October 2000, p. 12 – 18.

20

                                                
attempt  to  go  back  to  the  host  country  in  the  face  of  physical  hardship,  lack  of
employment or other difficulties.

As far as the Joint Actions were concerned the projects concentrated on: vocational
training,  preparation  for  return  through  subsidised  exploratory  visits  and  general
counselling concerning the situation in the country of origin, employment, assistance
in  creation  of  small  enterprises  in  the  country  of  origin,  post-return  assistance  and
follow-up.  The  difficulties  encountered  in  running  the  projects  were  indeed  very
numerous  but  not  insurmountable  in  many  cases:  political  obstacles  linked  to  the
situation  in  the  country  of  return,  barriers  relating  to  the  reluctance  to  return  to  a
country with little perspective, issue of travel documents to potential returnees who
then  had  the  right  to  go  back  to  the  host  country  if  they  so  wished,  and  not
infrequently an element of abuse by the target returnees. It was also found that unless
return  projects  were  carefully  dovetailed  with  re-construction  (for  example  in
Bosnia) there was little point in trying to return people to villages with no housing or
employment prospects.

In spite of these difficulties, the Commission can also point to return projects, which
have had more  success. There are some  examples  of training  programmes  to  foster
entrepreneurial skills, especially for Bosnians living in Germany, that exceeded their
targets. Generally speaking, projects run by organisations with long experience and
highly developed methodology had greater success.

However, the following elements, which formed part of the more successful projects
leading to sustainable return, might be highlighted:

(cid:1)  sufficient knowledge on the part of the implementing organisation of the country

of origin;

(cid:1)  implementing  organisation’s  links  to  the  country  of  origin,  whether  an  office,
contact  person  or  use  of  another  organisation’s  infrastructure  in  the  country  of
origin and collaboration with local civil society organisations;

(cid:1)  selection of potential returnees according to their needs and what was offered by
the  project  (professionally  run  small  enterprise  projects  (e.g.  that  assessed
marketability of enterprises, skills of would-be entrepreneurs, etc.);

(cid:1)  comprehensive  projects  tended  to  be  more  successful:  i.e.  those  that  included
counselling, vocational training, pre and post-return assistance and follow-up;

(cid:1)  follow-up and (at least) counselling post-return often had a measurable impact on

the sustainability of return;

(cid:1)  projects that helped the return community to a certain degree were more likely to
succeed.  Where  local  communities  benefited  from  the  return,  local  hostility  to
returnees was diminished or altogether avoided;

(cid:1)  given  the  fact  that  the  projects  were  based  in  the  EU  Member  States,  those
projects  that  managed  to  avail  of  what  was  on  offer  via  other  country  of  origin
based projects and programmes (construction, infrastructure, creation of schools,
creation of employment, etc.) improved their success rates.

21

Can you give a general assessment of existing return programmes?

Do  the  aforementioned  elements  ensure  a  better  implementation  of  return
programmes and which other elements should be mentioned as well?

3.5.2. Consideration of a European Return Programme

As  Member  States  have  also  earmarked  considerable  budgets  in  view  of
implementing voluntary return programmes and forced return operations, all above-
mentioned  elements,  and  others,  should  be  taken  into  consideration  in  a  joint
evaluation  exercise  to  be  conducted  in  the  framework  of  the  open  co-ordination
method. The conclusions of such an assessment should be taken into consideration at
the  time  of  the  renewal  of  the  European  Refugee  Fund,  which  will  expire,  in  its
present form, in 2004.

Following further evaluation of the experience with the European Refugee Fund the
creation of an independent European Return Programme could be considered for the
long-term  insofar  as  an  added  value  of  a  EC  funded  programme  can  be  clearly
identified. It might be considered necessary to support the efforts of Member States
to  return  illegal  residents  appropriately  based  on  the  assumption  that  every
sustainable  return  of  an  illegal  resident  is  in  the  common  interest  of  all  Member
States  in  order  to  avoid  secondary  movements.  The  scope  of  an  autonomous
European Return Programme could cover voluntary return, forced return and support
for return of irregular migrants in transit countries.

Repatriation and reintegration could be the main policy goal in the framework of the
voluntary  return  element  in  a  return  programme.  Moreover  it  is  conceivable  to
provide support for settlement in a third country which is willing to admit migrants.
Financial assistance could be granted for individual travel costs, transport of personal
possessions, the first expenses after return and a limited start-up support.

The financial support of enforcement measures could be an additional element of  a
European  Return  Programme  and  could  also  contribute  emphasising  the  need  for
solidarity among Member States on the return with regard for instance to travel costs
for returnees and escorts.

Furthermore third countries could be assisted in returning irregular migrants insofar
as they do not fulfil the entry conditions of the country concerned and the persons are
in transit with a view to entering the EU illegally.

Is the creation of an independent European Return Programme advisable?

Should such a programme cover voluntary return, forced returns and the assistance to
third countries in their efforts to return persons to countries of origin?

4.

PART III - TOWARDS A COMMON READMISSION POLICY

The  European  Council  referred  in  No. 26  of  its  Tampere  conclusions  of  October
1999 to the international obligation on states to readmit their own nationals. It also
confirmed, in conclusion No. 27, that the Amsterdam Treaty conferred powers on the
Community  in  the  field  of  readmission.  The  Council  was,  therefore,  invited  to

22

conclude readmission agreements or to include readmission standard clauses in other
agreements between the European Community and relevant third countries or groups
of  countries.  This  conclusion  was  based  on  the  recognition  that,  generally,  such
agreements constitute a valuable instrument in an active return policy as they set out
clear  obligations  and  procedures  in  order  to  facilitate  and  speed-up  returns.
Moreover, they provide a reliable institutional framework for co-operation and help
to  undermine  the  credibility  and  financial  interests  of  the  smuggling  networks
involved.

These principles were reaffirmed and enhanced by conclusion No. 40 of the Laeken
European Council of December 2001. Herein it was called for the integration of the
policy  on  migratory  flows  into  the  European  Union's  foreign  policy,  in  particular,
that  European  readmission  agreements  must  be  concluded  with  the  countries
concerned on the basis of a new list of priorities and a clear action plan.

The assessment of future target countries could ensue from the following criteria:

(1) 

the immigration pressure on the EU, and / or

(2) 

regional coherence, and / or

(3) 

the geographical proximity to the EU.

Should additional criteria for this assessment taken into consideration?

4.1.

Readmission  Agreements  and  Readmission  Clauses  in  Association  or  Co-
operation Treaties

4.1.1. Community Readmission Agreements

As far as Community readmission agreements are concerned, the Commission has so
far  been  authorised  to  negotiate  Community  readmission  agreements  with  Russia,
Morocco,  Pakistan,  Sri  Lanka  and  the  Chinese  Special  Administrative  Regions  of
Hong  Kong  and  Macao  in  accordance  with  Art.  300  TEC.  On  22  November  2001,
the  Commission initialled the  Community  readmission  agreement  with  Hong  Kong
which is now likely to become the first ever readmission agreement to be concluded
by the European Community.

The  Commission  will  push  forward  the  current  negotiations  in  order  to  complete
them in due time and – to the extent possible - in line with the negotiating directives.
But from the very diverging course of negotiations with this first set of six countries,
it is already possible to draw one important conclusion. As readmission agreements
are solely in the interest of the Community, their successful conclusion depends very
much of the "leverage" at the Commission's disposal. In that context it is important to
note that, in the field of JHA, there is little that can be offered in return. In particular
visa  facilitation  or  the  lifting  of  visa  requirement  can  be  a  realistic  option  in
exceptional  cases  only  (e.g.  Hong  Kong,  Macao);  in  most  cases  it  is  not.  The
Commission  would,  therefore,  invite  the  Council  to  discuss  this  complex  aspect  in
more  depth,  in  particular  by  reflecting  about  the  possibility  of  increasing
complementarity  with  other  Community  policies  in  order  to  help  achieving  the
Community's objectives in the field of return and readmission.

How  could  the  complementarity  and  coherence  between  the  various  Community
policies be further enhanced?

23

4.1.2.

Readmission Standard Clauses

Parallel to these activities, the Commission will also continue to insert  readmission
standard  clauses  in  all  future  association  or  co-operation  agreements.  The  present
clauses  were  adopted  by  the  Council  on  3  December  199930,  revising  the  1996
clauses31 in order to adapt them to the new legal situation arising from the entry into
force  of  the  Amsterdam  Treaty.  These  clauses  do  not  constitute  readmission
agreements in the strict sense as they are "enabling clauses" only, i.e. they  are only
intended  to  commit  the  contracting  parties  to  readmit  own  nationals,  third-country
nationals  and  stateless  persons.  But  the  actual  operational  arrangements  and
procedural  modalities  are  left  to  implementing  agreements  to  be  concluded
bilaterally  by  the  Community  or  individual  Member  States.  When  adopting  the
present clauses in December 1999, the Council made it clear that they would have to
be inserted in all future agreements to be concluded by the Community whereas the
"old"  1996  clauses  were  to  be  inserted  on  a  case-by-case  basis  only  which,  in
negotiations, often left the EU side open to accusations of discrimination. Although
partly  deviating  from  the  standard  text,  since  1996,  readmission  clauses  have  been
included,  inter  alia,  in  the  agreements  with  Algeria32,  Armenia33,  Azerbaijan34,
Croatia35,  Egypt36,  Georgia37,  Lebanon38,  Macedonia39,  Uzbekistan40  and  the
Cotonou  Agreement  between  the  EU  and  the  ACP-Countries41.  They  are  currently
subject of negotiations with a number of other countries.

4.2.

Transit  and  Admission  Arrangements  and  Agreements  With  Other  Third
Countries

Other  avenues  of  collaboration  with  third  countries  on  return-related  matters  could
also be helpful in finding solutions when a direct return to the country of origin is not
possible  or  appropriate.  In  cases  of  missing  or  lacking  travel  connections  to  the
country  concerned  it  could  be  assessed  whether  third  countries  are  willing  to  help
relating  to  the  transit  of  persons  to  the  country  of  origin.  Where  suitable,  transit
arrangements could be concluded.

Moreover,  the  feasibility  of  approaching  third  countries  to  find  alternatives  to
repatriation could be assessed. Consideration could be given as to whether other third
countries are willing to admit persons for a limited time or as a sustainable solution,
if this is acceptable for the Member State and adequate for the returnee concerned.

Which alternative concepts for repatriation could be assessed in dialogue with other
third countries?

30

31

32
33 
34 
35 
36 
37 
38
39 
40 
41 

Cf. Council Doc. 13409/99.
Cf. Council Doc. 4272/96.
Initialled on 19 December 2001.
OJ L 239 of 9 September 1999, p. 22.
OJ L 246 of 17 September 1999, p. 23.
COM (2001) 371 final of 9 July 2001, p. 46.
OJ C 304E of 30 October 2001, p. 16.
OJ L 205 of 4 August 1999, p. 22.
Initialled on 10 January 2002.
OJ C 213E of 31 July 2001, p. 44.
OJ L 229 of 31 August 1999, p. 22.
OJ L 317 of 15 December 2000, p. 10/11.

24

                                                
5.

CONCLUSION

The Commission has tried to shape a sketch for a Community return policy, which is
a  necessity  in  the  process  developing  a  comprehensive  European  asylum  and
immigration policy. The primary aim of the Green Paper is to call for reactions from
interested parties  and to launch a broad discussion among  all relevant stakeholders.
The  European  Parliament,  the  Council,  the  Economic  and  Social  Committee,  the
Committee  of  the  Regions,  the  candidate  countries,  third  country  partners,
international  governmental  organisations,  non-governmental  organisations,  the
academia and other interested civil society organisations and individuals are invited
to contribute to this discussion.

In order to integrate the results of the discussion launched by this Green Paper and to
prepare a hearing on the Community Return Policy in summer 2002, the Commission
invites all interested parties to comment in writing no later than 31 July 2002 to:

The Director General

Directorate General Justice and Home Affairs

European Commission

Rue de Luxembourg 46

B-1049 Brussels

jai-immigration-asile@cec.eu.int

25

Term

Return

Illegal resident

Voluntary return

Forced return

ANNEX I – Proposed Definitions

Definition

Genus of the policy area. Return comprises comprehensively the preparation
or implementation aiming at the way back to the country of origin or transit,
irrespective  of  the  question,  whether  the  return  takes  place  voluntarily  or
forced.

Any  person  who  does  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

The  return  to  the  country  of  origin  or  transit  based  on  the  decision  of  the
returnee and without use of coercive measures.

The return to the country of origin or transit with the threat with and/or the
use of coercive measures.

Compliant forced return

Forced  return  with  the  threat  and  minor  use  of  coercive  measures  such  as
escorts.

Non-compliant forced return

Forced return with the major use of coercive measures, such as restraints.

Readmission

Decision by a receiving state on the re-entry of an individual.

Readmission agreement

Agreement setting out the practical procedures and modes of transportation
for the return and readmission by the contracting parties of persons illegally
residing on the territory of one of the contracting parties.

Repatriation

Expulsion

Return to the country of origin, in both voluntary or forced return situations.

Administrative  or  judicial  act,  which  terminates  the  legality  of  a  previous
lawful residence e.g. in case of criminal offences

Expulsion order

Administrative or judicial decision to lay the legal basis for the expulsion

Detention

Act  of  enforcement,  deprivation  of  personal  liberty  for  law  enforcement
purposes within a closed facility

Detention order

Administrative or judicial decision to lay the legal basis for the detention

Removal42

Act  of  enforcement,  which  means  the  physical  transportation  out  of  the
country

Removal order

Administrative or judicial decision to lay the legal basis for the removal.

Re-entry

Rejection

Transit

New admission to the territory of a state after prior departure.

Refusal of (legal) entry at a border post

Sojourn  in  or  passage  through  a  third  country  while  travelling  from  a
country of departure to the country of destination.

42

The word “deportation” is also used in this context.

26