Opinion of the Economic and Social Committee on the "Green Paper on a Community return policy on illegal residents" (COM(2002) 175 final)
Date: 2002-09-18
Institutions: European Economic and Social Committee
Subjects: migration policy, repatriation grant, residence permit, restriction of liberty

14.3.2003

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Official Journal of the European Union

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Opinion of the Economic and Social Committee on the ‘Green Paper on a Community return
policy on illegal residents’

(COM(2002) 175 final)

(2003/C 61/13)

On 11 April 2002 the Commission decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the ‘Green Paper on a Community
return policy on illegal residents’.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 4 September 2002. The rapporteur was
Mr Pariza Castaños.

At its 393rd Plenary Session on 18 and 19 September 2002 (meeting of 18 September) the Economic
and Social Committee adopted the following opinion by 126 votes, with three abstentions.

1. Gist of the Commission proposal

reasons and because voluntary returns require less administrat-
ive efforts than forced returns. It also suggests that forced
returns might serve to dissuade potential illegal immigrants.

1.1.
This Green Paper contains a range of proposals,
observations and questions on the subject of illegal status and
the various steps that may be taken to ensure that illegal
residents return to their countries of origin. It is consistent
with the conclusions of the Laeken European Council of
December 2001 and is based on the illegal immigration action
plan adopted by the Council on 28 February 2002.

The Green Paper raises numerous questions, and
1.2.
suggests a number of ways of addressing the problems
involved. It is a discussion paper which is intended to initiate
a wide-ranging debate involving the whole of European society
— not just the European institutions, but also the applicant
States, non-governmental organisations, academic circles and
civil society organisations.

1.3.
Part I discusses return as an integral part of Community
immigration and asylum policy. It distinguishes between two
categories of persons: persons who are legally resident, who,
for various reasons (retirement, wish to participate in develop-
ment projects in their country of origin, refugees able to return
home, etc.), decide to return on a voluntary basis and need
help to do so; and those who are illegally resident (illegal
immigrants, asylum seekers whose applications have been
rejected but who have remained, etc.).

1.6.
On the subject of asylum, the Green Paper describes
various situations where persons must be returned: asylum
seekers whose applications have been rejected, persons who
have benefited from protection but no longer require it, etc. In
such cases, voluntary return should again be given priority,
but forced returns might be necessary as a last resort. In all
cases, the obligations imposed by international treaties must
be respected, including prohibition of collective expulsions
and expulsion to countries where the individual concerned
would be exposed to serious risk.

1.7.
The Commission stresses that human rights must be
respected in all procedures, and emphasises that illegal resi-
dents must have adequate possibilities to lodge an appeal
before a court during the return procedure.

1.8.
Part II discusses at length cooperation on returns
between the Member States. The Commission suggests a range
of proposals and questions on the subject of return procedures,
conditions, etc.

1.4.
In the case of illegal residents, the Commission favours
voluntary return wherever possible. However, in cases where
voluntary return is not possible, forced return will be necessary.

The Commission states that illegal residents must
1.5.
return to avoid admission policy being undermined. As far as
possible, returns should be voluntary, both for humanitarian

1.9.
A person who has been legally resident may only be
returned by means of an expulsion order, and only if one of
the following circumstances applies: expiry or revocation of
the residence permit, conviction of a crime punishable by at
least one year’s imprisonment, the existence of serious grounds
for believing that serious criminal offences have been commit-
ted or solid evidence of intention to commit such offences.

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1.10.
The Commission points out that long-term residents
benefit from special protection from expulsion, and asks
whether such protection should be extended to other groups.
It also discusses the conditions under which residence permits
may be revoked.

immigration being considered as a “back door” to legal
immigration.
those
involved, consideration should be given to the degree to
which they have settled in social and employment terms.’

In regularising the situation of

1.11.
The Commission believes that detention or intern-
ment centres where people are held pending removal must be
subject to rules governing their operation and to minimum
standards of accommodation and infrastructure. It also raises
a number of questions concerning the establishment of
common rules on these matters at EU level.

The Member States should cooperate on all aspects
1.12.
of the transit of returnees through other States and work to
improve operational cooperation at technical level.

1.13.
In Part III, the Commission suggests that a common
policy on readmission should be put in place, pointing out the
difficulties of reaching agreements with countries of origin,
given that in the current circumstances readmission agree-
ments are not in the interests of many countries. It considers
that such agreements should be included as part of future
association and cooperation agreements.

2. Preliminary considerations

2.1.
The EESC believes that a person ‘without papers’ is a
human being with the same basic rights and dignity as other
people. In its opinion on the Commission communication on
a common policy on illegal immigration (1), it thus expressed
the view that an immigrant without papers is not a person
without rights:

— ‘... Some clarification is needed when the term “illegal
immigration” is used to refer to individual migrants.
Although it is not lawful to enter a country without the
required documents and authorisation, those who do so
are not criminals.
Irregular immigrants are not
criminals, even though their situation is not legal.’

(...)

— ‘The Committee’s other main objection to the content of
the communication concerns the way irregular immi-
grants in the EU should be treated. The communication
speaks only of return policy: (...) [but this] cannot be the
sole response to irregular situations.’

— ‘Within the framework of policy coordination, the Com-
mission should urge the Member States to prepare
regularisation measures, averting the risk of irregular

( 1) OJ C 149, 21.6.2002.

— ‘Turning to readmission and return policy, the Committee
would emphasise that the voluntary aspect should be
encouraged, and the utmost consideration given to
humanitarian values. The Member States of
the EU
must not enter into readmission agreements with third
countries where serious political instability or human
rights’ violations are rife. The Committee will scrutinise
the green paper on a Community return policy with great
care.’

— ‘A common policy against illegal immigration must take
account of all its contributory factors. It must not be
restricted to law enforcement and judicial policies alone
which, although certainly necessary, cannot by them-
selves diminish irregular immigration.’

— ‘The Committee calls for greater speed and responsibility
on the part of
in its legislative work
the Council
concerning immigration and asylum. The present delay
in drafting the directives and regulations proposed by the
Commission makes it difficult to ensure that migration
takes place through legal channels.’

2.2.
On the basis of these considerations and those set out
in other opinions (2), the EESC believes that compulsory return
should not be the EU’s only or prime response to immigrants
currently in the EU in an irregular situation. What is needed
is a comprehensive policy incorporating both return and
regularisation.

2.3. Making return the only option for persons in an
irregular situation is not only unfair and inappropriate for the
persons concerned, but, given that several million human
beings may be involved, it is also unrealistic. Even of those
persons who are the subject of expulsion orders, only a small
percentage is effectively expelled — expulsion is a costly and
difficult process, and many of the States of origin refuse to
readmit the persons concerned.

(2) See the opinion on Community immigration policy, OJ C 260,
17.9.2001, opinion on the status of third-country nationals who
are long-term residents, OJ C 36, 8.2.2002, ESC opinion on the
open coordination method for immigration and asylum of 29/
30.5.2002.

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If the policy of compulsory return is not combined
2.4.
with regularisation measures,
the numbers of people in
irregular situations will remain unchanged, feeding the hidden
economy and leading to increased exploitation in employment
and social exclusion.

2.5.
The Committee wishes to stress that the Commission,
the Parliament, the Economic and Social Committee and
various experts concur in the view that the Union needs a
large number of immigrants to fill both skilled and unskilled
jobs. The Union needs legal immigration to enable its econ-
omic and social system to function, but the Member States are
closing the door on this possibility, causing illegal immigration
to rise. Most of the immigrants currently in the Union illegally
are engaged in economic activities and employment which
have a positive impact on the economic and social develop-
ment of the European Union.

The real victims of the current unfair situation are
2.6.
people without papers. The total
legal and administrative
uncertainty to which they are subject drives them into the
hidden economy, and in some cases into exploitation at work
or social exclusion.

Human rights considerations and economic and social
2.7.
needs dictate that under certain conditions, the situation of
many immigrants currently in the Union illegally ought to be
regularised, although illegal immigration should not become a
‘back door’ to legal immigration.

It hopes that

The Committee would remind the Council and Com-
3.4.
it has issued opinions on these legislative
mission that
these will be studied and that
proposals.
Community legislation will incorporate the views expressed
therein. The Council must seek to ensure that the legislation
adopted on immigration and asylum is not minimal and far
removed from the substance of the opinions of the Parliament
and the Committee. The Union needs adequate legislation on
immigration and asylum which addresses economic, pro-
fessional and humanitarian factors, international conventions
and the Charter of Fundamental Rights in a balanced manner.

3.5.
As the Committee has stated in previous opinions, in
order to combat illegal immigration, appropriate channels for
legal immigration must exist. The Committee is surprised and
disappointed that the Seville European Council failed to agree
a timetable for adoption of the directive on conditions of entry
and residence for persons entering the Union for economic
purposes. It
immigration
is essential that means of legal
immigration is to be prevented. In this
function if illegal
regard, the Seville Council failed to send out the right message
to promote steady progress on the common immigration and
asylum policy.

4. Comments

4.1.
The Committee welcomes the Commission’s decision
to present this Green Paper as a discussion document paving
the way for a wide-ranging debate. It has approached this
opinion with an open and constructive spirit, and hopes that
other institutions and organisations will also draw up opinions.

3. The Seville European Council

4.2. Voluntary return

At Seville, the European Council decided to give a fresh
3.1.
impetus to the common immigration and asylum policy,
establishing timetables for the adoption of political and
legislative decisions in the second half of 2002 and 2003.

3.2. With regard to policy on expulsion and repatriation,
the Council agreed to adopt a framework for a repatriation
programme based on the Commission Green Paper, by the
end of the year.

3.3.
The Council also agreed to integrate immigration
policy into the Union’s relations with third countries. It
agreed new commitments aimed at furthering progress on
the common immigration and asylum policy, in particular
timetables for the adoption of legislation on family reunifi-
cation, changes to the Dublin Convention, refugee status and
the status of long-term residents.

4.2.1.
The EESC supports the existence of EU and Member
State policies to assist and cooperate in voluntary return aimed
at ensuring that persons who are legally resident but decide to
return have the necessary means to enable them to return
under satisfactory conditions.

4.2.2.
The Committee would stress that organisations such
as the IOM (1) or the UNHCR (2) must always be involved in
the voluntary return of illegal residents. These organisations
can provide confirmation of exit and re-entry of the returnee
to his or her country of origin and monitor the conditions of
re-entry. Internationally recognised NGOs can also play a role
in these activities.

(1) International Organisation for Migration.
(2) United Nations High Commission for Refugees.

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4.2.3.
Voluntary return must be combined with the grant-
ing of favourable conditions for future migration. Persons who
have returned voluntarily should be given preference if they
subsequently apply to migrate to the Member State which they
left.

Both the EU and the Member States must ensure that
4.2.4.
adequate resources are available to support voluntary return.
There must be ongoing programmes with sufficient funding
for the reintegration of returnees in their countries of origin.
The Committee would welcome the creation of a European
return programme based on support for reintegration. Inter-
nationally respected NGOs, which have a great deal of
experience in managing return and social
integration pro-
grammes, should also be involved in managing these pro-
grammes.

4.3.

Forced return

4.3.1.
The Commission proposal rightly gives priority to
voluntary return and treats forced return as a last resort. The
EESC shares the Commission’s view that this is an extremely
harsh measure, and a very significant encroachment on the
freedom and wishes of the individuals concerned. The people
concerned have often sold all of their possessions to emigrate
and have acquired debts. Return can thus put them in a
desperate situation.

The Commission itself points out

that under
4.3.2.
Article 19 of the Charter of Fundamental Rights of the
European Union, collective expulsions are prohibited, and 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 treat-
ment or punishment. But the fact remains that the UNHCR
and various NGOs have drawn attention to a number of
collective expulsions and expulsions of illegal immigrants and
asylum seekers to countries where human rights violations are
rife.

The EESC supports the Commission’s view (1) that a
4.3.3.
European return policy should respect human rights and
fundamental freedoms. It points out that Articles 3, 5, 6, 8
and 13 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and Articles 3, 4,
19, 24 and 47 of the Charter of Fundamental Rights of the
European Union contain provisions which are applicable to a
policy on return of illegal or irregular residents. It is important
to stress that many of these immigrants are in a difficult
humanitarian situation, and that the rules and practices that
are agreed must be drawn up and implemented in accordance
with criteria based on human rights law and the moral
principles of solidarity.

4.3.4.
The Commission announces its intention to draw up
a proposal for a directive on minimum standards for return
procedures. The EESC supports common legislation on the
basis of the Charter of Fundamental Rights and the European
Convention for the Protection of Human Rights. A number of
internationally respected NGOs have pointed out that some
aspects of current legislation and practice in the Member States
run counter to human rights and the Charter of Fundamental
Rights of the European Union (2).

Return by means of an expulsion order of persons
4.3.5.
whose residence permit has expired must be considered an
extreme measure. It must first be considered whether such
persons have indicated a wish to renew their residence. If such
is the case, any possibility of regularisation must always be
given priority over expulsion.

4.3.6. When residents in an irregular situation have been
resident legally under special protection status, any family,
social or employment ties they have developed must also be
taken into account, and a harsh procedure of expulsion or
forced return avoided.

4.3.7.
The Committee considers that it is reasonable to
expel third-country nationals who have been convicted by the
courts of a crime punishable by imprisonment of at least one
year, in accordance with Directive 2001/40/EC of May 2001.
However, it does not support expulsion for suspected crimes
that have not been tried in court. The presumption of
innocence must always prevail, in line with Article 48 of the
Charter of Fundamental Rights.

4.3.8.
Expulsions in connection with crimes must be subject
to all the legal safeguards which normally apply under the rule
of law. Thus, the Committee considers that the Green Paper
must rule out the possibility of expulsion for crimes which
have not been tried and are thus not proven. The Committee
would refer in particular to the possibility of expulsion on the
grounds of ‘the existence of serious grounds for believing that
a third-country national has committed serious criminal
offences’ and ‘the existence of solid evidence of his or her
intention to commit such offences.’ It must always be the job
of the courts to pass judgment on whether a crime has been
committed and to issue expulsion orders.

4.3.9.
As the Commission states, expulsion decisions must
take account of the type of residence permit concerned. Long-
term residents, family members of a citizen of a Member State,
refugees and persons under other forms of
international
protection must be expelled only where there are serious risks
to public safety and public order. Effective judicial protection
must be a guaranteed part of the expulsion process. The EESC
believes that minors and other vulnerable persons must always
benefit from the highest possible levels of protection.

( 1) Green Paper, paragraph 2.4 on human rights and return.

drawn up a number of reports.

(2) Amnesty International, the Red Cross and other NGOs have

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4.3.10.
Harmonisation of Community legislation must
avoid forced return in a certain number of specific situations:

— If return would separate the person concerned from
family members, whether from a spouse who is a national
or legal resident or from children or relatives in the
ascending line.

— When return would be harmful to minors dependent

upon the person concerned.

— When the person concerned suffers from a serious

physical or mental illness.

— When the safety, life and freedom of the person concerned
would be at serious risk, either in his country of origin or
in the transit country.

4.3.11.
The right to appeal against an order of expulsion or
forced return must always have suspensive effect, since this is
the only means of guaranteeing the rights of the individuals
concerned.

5.5.
The EESC asks that the Commission and Council clarify
the purpose of detention prior to expulsion in the case of
people who cannot be expelled, be it due to the absence of the
necessary agreement with their country of origin, because their
country is at war, because they are subject to persecution or
due to lack of respect for human rights. The situations of
prolonged internment which occur in some Member States are
not acceptable from a human rights perspective.

In addition to drawing up minimum standards, the EU
5.6.
should also keep an up-to-date list of countries to which
people may not be removed owing to lack of freedom or war
or humanitarian crisis.

5.7.
Persons who are seriously physically or mentally ill
should be neither detained nor expelled, since they require
medical care.

5. Detention pending removal

6. Readmission agreements

5.1.
Detention pending removal is a significant encroach-
ment on personal liberty. Any minimum standards drawn up
at EU level must ensure that detention orders are issued by a
judicial authority and may be subject to appeal.

5.2.
Persons awaiting removal or expulsion must not be
detained in ordinary prisons, since illegal residents are not
criminals (1). Detention centres should be set aside for this
purpose, and prisons may only be used where the expulsion is
the result of crimes having been committed.

6.1.
The Commission and Member States are currently
finding it difficult to reach readmission agreements with third
countries. Clearly, readmission agreements are in the interests
of the EU alone. The EESC considers that such agreements
should be complemented by other political and economic
instruments which are in the interests of third countries. The
EU’s relations with third countries should always be based on
humanitarian criteria.

Conditions in such centres should be the subject of
5.3.
rules at EU level. The detainees must be able to exercise their
human rights, with the exception of freedom of movement.
Detention pending removal should not exceed 30 days. Minors
not accompanied by parents or guardians should be cared for
by the authorities, and should not be held in detention centres.

The EU’s association agreements with third countries
6.2.
should include clauses designed to regulate migratory flows in
a legal manner and to ensure that European immigration
policy plays a positive role in the economic and social
development of these countries. In this regard, consideration
should be given to readmission agreements.

5.4.
Detention centres should be combined with an alterna-
tive solution whereby the person awaiting removal may remain
in his usual residence, provided that he complies with an
obligation to present himself regularly to the authorities.
Decisions on whether or not an individual is to be detained
must take account of the situation of the person concerned.
For example, a person with family or employment ties who is
to be forcibly returned owing to expiry of his or her residence
permit should not be detained.

( 1) OJ C 149, 21.6.2002.

6.2.1.
The EESC supports the decision of the Seville Euro-
pean Council to maintain the objectives of development
cooperation, ensuring that any penalties applied to third
countries do not affect cooperation commitments. The best
way of easing migratory pressure from developing countries is
to step up European Union policies to assist their development.

The Committee would point out

6.3.
that a previous
opinion (1) expressed the view that respect for human rights is
an essential precondition for the signature of readmission
agreements.

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7. Return and development aid

7.1.
European return policy vis-à-vis third countries must
be positive for the development of these countries. It must not
create additional problems. Returnees must be integrated into
society and play a positive role in its economic and social
development. Aid for return must enable returnees to be
integrated in the labour market and promote the development
of economic activities.

7.2.
The positive link that should exist between return and
development must apply to both voluntary and forced return,
although success will always be greater when return is accepted
on a voluntary basis.

7.3.
Returns should be accompanied by programmes tail-
ored to personal situations, reflecting the financial, pro-
fessional, social and family circumstances of
the people
concerned and the economic and social situation in the
country to which they are returning. The programme should
incorporate actions by organisations cooperating in the pro-
cess.

7.4.
Funding for Community return programmes must not
take away from Community or Member State development
programmes. They must be new programmes which add to
the resources currently available.

Brussels, 18 September 2002.

7.5.
Internationally recognised international organisations
(IOM, Red Cross, UNHCR, etc.) must be associated with the
EU and the Member States in the management of these
programmes.

7.6.
The Commission has announced the impending publi-
cation of a Communication on immigration and development
aid. The EESC considers this a necessary initiative and hopes
that the Commission will take its views into account.

8.

Final comments

8.1.
The Council is rightly stepping up the pace of its work
on combating illegal immigration. A number of EESC opinions
have expressed the view that it is largely the responsibility of
the Council and the Member States that the EU still
lacks
common laws on immigration and asylum, which hampers
lawful management of migratory flows.

All EU institutions and bodies must stand firm against
8.2.
extremist political behaviour that is developing in some areas,
particularly that of a racist nature. They must act in a highly
responsible manner and seek to educate citizens politically as
to the reality of migratory flows. Information and opinions
broadcast by the media must be based on objective foundations
and be presented in a responsible manner. Some unscrupulous
politicians use citizens’ concerns to whip up racism and
xenophobia. The EESC supports action by civil society organis-
ations to combat racism and xenophobia.

The President

of the Economic and Social Committee

Göke FRERICHS