Communication from the Commission to the Council and the European Parliament on a community return policy on illegal residents
Date: 2002-10-14
Institutions: European Commission
Subjects: EU migration policy, action programme, cooperation policy, exchange of information, residence permit, standard

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.10.2002
COM(2002) 564 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

ON A COMMUNITY RETURN POLICY ON ILLEGAL RESIDENTS

Table of Contents

Foreword

1. Return as an integral part of a comprehensive Community immigration and asylum
Policy ........................................................................................................................... 6

1.1.

Introduction .................................................................................................................... 6

1.2. Working premises following the Commission’s Green Paper ....................................... 7

1.2.1.

Focussing on the return of illegal residents ................................................................. 7

1.2.2.

Safeguarding the integrity of immigration and asylum systems by the return of illegal
residents ....................................................................................................................... 8

1.2.3. Respecting international obligations and human rights ............................................... 8

1.2.4. Co-operating with countries of origin and transit on return and readmission.............. 9

2. Return Action Programme .............................................................................................. 9

2.1.

Phased integrated approach for interdependent elements of a Community return policy
...................................................................................................................................... 9

2.2.

Operational co-operation among Member States......................................................... 11

2.2.1. Definitions.................................................................................................................. 11

2.2.2.

Statistics and information exchange........................................................................... 11

2.2.3. Networking authorities............................................................................................... 11

2.2.4. Best practices and guidelines ..................................................................................... 12

2.2.5.

Joint training .............................................................................................................. 12

2.2.6. Better identification and documentation .................................................................... 13

2.2.7. Readmission and transit rules among Member States................................................ 14

2.2.8. Mutual assistance by immigration liaison officers..................................................... 15

2.2.9.

Joint Return Operations ............................................................................................. 15

2.2.10. Better co-ordination ................................................................................................... 16

2.3.

Common minimum standards to ensure efficient return policies ................................ 17

2.3.1. Mutual recognition of return decisions ...................................................................... 17

2.3.2. Removal ..................................................................................................................... 17

2.3.3.

Preconditions for expulsion decisions........................................................................ 18

2

2.3.4.

Ending of legal residence ........................................................................................... 19

2.3.5. Detention pending removal ........................................................................................ 19

2.3.6.

Proof of exit and re-entry ........................................................................................... 21

2.4.

2.5.

Elements for integrated return programmes................................................................. 21

Intensification of co-operation with third countries ..................................................... 23

2.5.1.

Enhanced administrative co-operation....................................................................... 23

2.5.2. Community readmission agreements ......................................................................... 24

2.5.3.

Transit and admission arrangements and agreements with other third countries ...... 24

3. Conclusions ..................................................................................................................... 25

Annex

3

FOREWORD

The  Commission  stressed  the  need  for  a  common  return  policy  in  its  Communication  of
15 November 2001  on  a  Common  Policy  on  Illegal  Immigration.  As  it  had  pledged,  on
10 April 2002 it tabled a Green Paper on a Community Return Policy on Illegal Residents to
serve  as  a  basis  for  wide-ranging  consultations  on  this  sensitive  issue.  This  process,  which
was  concluded  on  31  July,  attracted  many  contributions  from  Member  States,  candidate
countries,  third  countries,  international,  governmental  and  non-governmental  organisations
and other national and local authorities. It culminated in a public hearing on 16 July attended
by over 200 people at which some thirty experts spoke.

The importance of the matter was restated in the conclusions of the Seville European Council,
which  called,  as  a  matter  of  priority,  for  an  action  programme  to  be  adopted  in  this  field
before  the  end  of  the  year.  Return  policy  was  also  discussed  in  detail  at  the  informal
ministerial  meeting  in  Copenhagen  on  13  and  14  September.  Like  the  results  of  the
consultation, the pointers  provided  by  these  discussions  were  an  invaluable  contribution  for
preparing this Communication.

The Commission would point out that a common approach on return would be inconceivable
outside  the  general  framework  of  the  Community  policy  on  immigration  and  asylum,  the
foundations  of  which  were  laid  in  the  Treaty  of  Amsterdam  and  in  the  conclusions  of  the
Tampere, Laeken and Seville European Councils. In this sense, the Communication is just one
part  of  a  much  larger  whole,  the  other  components  of  which  can  be  found  in  the  many
proposals and Communications, which the Commission has tabled in recent years.

As the title itself suggests, the only issue addressed is that of the return of illegal residents, i.e.
those who do not, or no longer, fulfil the conditions for entry to, presence in or residence on
the territories of the Member States. It does not tackle the wider topic of the return of legal
residents and, for example, how such return could benefit the country of origin. These points
will be addressed elsewhere, for instance in a forthcoming Communication on the relationship
between migration and development.

The effectiveness of Community action for return of illegal residents is therefore an essential
aspect for the credibility of any policy for fighting illegal immigration. But for it to be fully
effective,  it  must  fit  smoothly  into  a  genuine  management  of  migration  issues,  requiring
crystal-clear  consolidation  of  legal  immigration  channels  and  of  the  situation  of  legal
immigrants,  an  effective  and  generous  asylum  system  based  on  rapid  procedures  offering
access  to  true  protection  for  those  needing  it  and  enhanced  dialogue  with  third  countries,
which will increasingly be invited to be partners in dealing with migration.

Against  this  background,  and  given  the  specific  purpose  of  this  Communication,  the
Commission intends to highlight four items in particular:

–  A rapid response is required to the need to step up operational cooperation. Member States
are very keen on this. It is essential that contacts and the exchange of information be made
easier on  the basis of common terms  of  reference,  practices  and  training  be  brought  into
line and common moves be encouraged so that obstacles can be removed and resources co-
ordinated in areas such as the identification and documentation of the persons concerned,
co-ordination of return operations and mobilisation of the necessary resources.

4

–  This  operational  cooperation  will,  however,  soon  reveal  its  limitations  if  there  is  no
suitable  legal  framework.  A  first  target  for  the  medium  term  will  be  the  adoption  of
common  standards  to  facilitate  the  work  of  the  national  authorities  handling  return
operations and in particular to ensure full mutual recognition of removal decisions, moving
on  from  the  first  step  represented  by  the  directive  adopted  in  May  2001.  Subsequently
these arrangements  will have  to be spelled out in  even  more detail  on  points  such  as  the
situation of a person who may be the subject of a return decision.

–  On the basis of the experience of Member States and international organisations, the basic
elements of an integrated programme should be worked out to form a common framework
which could be adjusted to the specific needs of the populations and countries concerned.
Such a programme would have to cover not only return proper but also the different stages
of its preparation and  its  follow-up in  order  to  give it every  chance  of  being  sustainable.
The  Commission  is  prepared,  if  necessary,  to  consider  the  possibility  of  releasing
Community financial resources to support the establishment of such programmes.

–  Here,  as  elsewhere,  closer  co-operation  with  third  countries  is  a  sine  qua  non  for  the
success  of  the  policy.  This  co-operation  will,  of  course,  have  to  develop  first  at
administrative  and  operational  level,  concerning  the  documentation  and  reception  of  the
persons concerned and also as regards transit in some cases. In formal terms it may involve
conclusion  of  readmission  agreements,  the  importance  of  which  has  been  regularly
underlined  by  the  European  Council  and  the  Council.  Care  will  also  have  to  be  taken  to
ensure that the ground is prepared for profitable reintegration both for the returnee and for
the  place  of  origin.  This  will  require  both  a  firm  commitment  on  the  part  of  the  third
country  and  the  readiness  of  the  European  Union  and  its  Member  States  to  provide  the
necessary assistance where required.

5

1. 

RETURN  AS  AN  INTEGRAL  PART  OF  A  COMPREHENSIVE  COMMUNITY  IMMIGRATION

AND ASYLUM POLICY

1.1. 

Introduction

The European Council of Seville on 21 and 22 June 2002 called for the speeding up
of  the  implementation  of  all  aspects  of  the  programme  adopted  by  the  European
Council of Tampere in October 1999 for the creation of an area of freedom, security
and justice in the European Union, in particular the common policy on immigration
and asylum. The need to fight effectively against illegal immigration was reaffirmed
as  an  essential  part  of  such  a  common  and  comprehensive  policy.  The  European
Council  of  Laeken  on  14  and  15  December  2001  had  already  called  for  an  action
plan on illegal immigration1. On the basis of the Commission’s Communication on a
common  policy  on  illegal  immigration  of  15  November  20012,  the  JHA  Council
adopted  on  28  February  2002  a  comprehensive  plan  to  combat  illegal  immigration
and  trafficking  of  human  beings  in  the  European  Union3.  Return  and  readmission
policies are identified as integral and vital components of that plan.

To  follow up those aspects  of this plan  the Commission  on  10  April 2002 tabled a
Green Paper on a Community Return Policy on Illegal Residents4. Its purpose was to
invite  reactions  from  interested  parties  and  to  launch  a  broad  discussion  among  all
relevant  stakeholders.  To  that  end  the  Commission  hosted  a  public  hearing  on  16
July  2002,  where  on  the  basis  of  the  ideas  set  out  in  the  Green  Paper,  the  present
practices of return policies and options for a future common EU policy on the return
of illegal residents were discussed. The hearing allowed an open exchange of views
of representatives of the European institutions, Member States, candidate  countries,
countries  of  origin  and  transit,  other  countries  of  destination,  international
organisations,  regional  authorities,  non-governmental  organisations  and  academia5.
In addition, as requested in the Green Paper, written contributions were submitted to
the Commission6.

The  informal  JHA  Council  meeting  of  13  and  14  September  2002  debated  the
elements of a future return action programme as requested in Seville Conclusion No
30, which, inter alia, stated:

“(…) The European Council calls on the Council and the Commission, within their
respective spheres of responsibility, to attach top priority to the following measures
contained in the plan: (…)

(cid:1)  as regards expulsion and repatriation policies, adoption by the end of the year, of
the  components  of  a  repatriation  programme  based  on  the  Commission  Green

1

2

3

4

5

6

Cf. Conclusion No. 40.
COM (2001) 672 final.
Council Doc. 6621/1/02 rev.1, JAI 30.
COM (2002) 175 final.
For further information check: http://europa.eu.int/comm/justice_home/unit/immigration_en.htm.
See aforementioned web pages.

6

                                                
Paper;  those  components  should  include  the  best  possible  facilities  for  early
return to Afghanistan; (…)”

The discussion at the JHA Council meeting stressed in particular the need to enhance
operational co-operation among Member States in order to make return policies more
efficient in practice. The purpose of this Communication is to respond to this call and
to  put  forward  an  outline  for  a  return  action  programme  taking  into  account,  inter
alia,  the  contributions  and  discussions  in  response  to  the  Green  Paper.  The
Communication  focuses  on  the  first  element  of  the  Seville  European  Council’s
requirement, namely the concrete measures deriving from the general policy on the
return of illegal residents, valid for all regions or countries of origin or transit.

With respect to Seville’s more specific reference to the case of  Afghanistan, this is
being addressed in a separate framework. Nonetheless, it is clearly closely linked and
must  be  coherent  with  the  general  policy  line  on  return  as  set  out  in  this
Communication.  The  identification  and  implementation  of  such  elements  for  early
return to Afghanistan in particular  will create a unique opportunity for the Member
States  and  the  Commission  to  test  the  effectiveness  of  the  new  Community  return
policy.

1.2.  Working premises following the Commission’s Green Paper

In  its  Green  Paper  on  a  Community  Return  Policy  on  Illegal  Residents,  the
Commission set out a number of working premises for the purpose of incorporating
return  policy  as  an  integral  part  of  a  comprehensive  Community  immigration  and
asylum  policy7.  This  Communication  is  based  on  those  same  premises,  the  most
important elements of which are briefly recalled below.

1.2.1.  Focussing on the return of illegal residents

Although return policy in principle also covers the return of persons legally residing
in  the  EU  but  willing  to  return  to  their  country  of  origin,  this  Communication
concentrates  mainly  on  the  return  of  persons  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. The term “illegal resident” is used following the legal
terminology of Article 63 (3) b) of the Treaty of the European Community. This term
must  not  be  perceived  as  qualifying  the  persons  as  being  illegal,  but  as  qualifying
their status of not being in compliance with the law on entry and/or residence.

Nevertheless, it is useful to extend slightly the focus of this Communication, only as
far as voluntary return is concerned, to certain groups of legal residents, who have a
temporary status or whose removal has been temporarily suspended. This concerns in
particular persons under any form of international protection and which is principally
of  a  temporary  nature.  Experience  shows  that  in  the  context  of  voluntary  return
programmes it makes sense not to limit the scope of such a programme too much.

7

Cf. Part I – Return as an Integral Part of a Comprehensive Community Immigration and Asylum Policy
of COM (2002) 175 final.

7

                                                
1.2.2.  Safeguarding the integrity of immigration and asylum systems by the return of illegal

residents

The  Communication  deals  with  both  aspects  of  the  return  of  illegal  residents:
voluntary or forced. To every extent possible, priority should be given to voluntary
return  for  obvious  humane  reasons,  but  also  due  to  costs,  efficiency  and
sustainability. More efficient ways to promote voluntary returns should therefore be
developed and implemented.

However, in cases where voluntary return fails, the forced return of illegal residents
becomes  a  necessity.  A  credible  threat  of  forced  return  and  its  subsequent
enforcement  send  a  clear  message  to  illegal  residents  in  the  Member  States  and  to
potential illegal migrants outside the EU that illegal entry and residence do not lead
to the stable form of residence they hope to achieve8. It must be made clear that, 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.

The  possibility  of  forced  return  is  essential  to  ensure  that  admission  policy  is  not
undermined and to enforce the rule of law, which is a constituent element of an area
of freedom, security and justice. A credible policy on forced returns helps to ensure
public  acceptance  for  more  openness  towards  persons  who  are  in  real  need  of
protection,  and  for  new  legal  immigrants  against  the  background  of  more  open
admission policies, particularly for labour-driven migration.

1.2.3.  Respecting international obligations and human rights

Article 6 of the Treaty on European Union affirms that the 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.  In
consequence,  the  full  respect  of  human  rights  and  fundamental  freedoms  is  the
natural and basic prerequisite for a European return policy.

As  already  set  out  in  the  Green  Paper  on  a  Community  Return  Policy  on  Illegal
Residents,  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 20009 contain provisions which are
applicable to a policy on return of illegal residents (Articles 3, 5, 6, 8, 13 and 14 of
the  ECHR  and  Articles  3,  4,  7,  19,  21,  24  and  47  of  the  Charter  of  Fundamental
Rights). Specifically relevant to international protection are Article 18 of the Charter
of Fundamental Rights and the provisions of the Geneva Convention of 28 July 1951
on the status of refugees and the Protocol of 31 January 1967, in particular Articles
32  and  33  thereof.  Finally,  it  should  be  emphasised  that,  according  to  the  United
Nations  Convention  on  the  Rights  of  the  Child  of  1989;  in  all  actions  related  to
children, the child’s best interest must be a primary consideration.

8

9

Cf. COM (2001) 672, p.6.
OJ C 364 of 18 December 2000, p. 1.

8

                                                
1.2.4.  Co-operating with countries of origin and transit on return and readmission

The  European  Council  of  Seville  highlighted  –  once  again  –  the  importance  of  the
co-operation  with  countries  of  origin  and  transit  on  migration  management,  in
particular in the field of return and readmission. Third countries must readmit  their
own nationals unlawfully present in a Member State and, under the same conditions,
nationals of other countries who can be shown to have passed through their territories
before  arriving  in  the  EU10.  Member  States’  Justice  and  Interior  Ministers  recently
expressed  their  view  that  the  main  problem  does  not  lie  in  strengthening  the  co-
operation between Member  States, but  is  rather  attributable  to  the  unwillingness  of
third  countries  to  take  back  their  nationals  and  to  ensure  sustainable  return.  They
have, therefore, the clear expectation that the third countries concerned should be put
under pressure to be more co-operative both by the Community and by the Member
States.

Co-operation  is  needed at an  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, requires support. In certain cases it might be helpful to negotiate a
readmission  agreement  at  political  level,  which  goes  further  than  establishing  the
principles  of  readmission  and  sets  out  the  practical  procedures  and  modes  of
transportation for return and readmission.

Co-operation with  countries  of origin  and transit on  return  and  readmission  is  vital
and might be backed up –  where appropriate and  within the limits of the resources
allocated  in  the  framework  of  the  financial  ceilings  –  with  technical  or  financial
assistance  from  the  EU  side.  Moreover,  the  refusal  of  constructive  co-operation
should  trigger  the  phased  mechanism  as  defined  in  the  Seville  Conclusion  No  36,
which  could,  in  case  of  persistent  and  unjustified  denial  of  such  a  co-operation,
include the unanimous adoption of measures or positions under the Common Foreign
and Security Policy and other European Union policies after full use has been made
of existing Community mechanisms without success.

2. 

RETURN ACTION PROGRAMME

2.1. 

Phased integrated approach for interdependent elements of a Community return

policy

All Member States face the same obstacles to a smooth and timely return of illegal
residents  to  their  country  of  origin:  lack  of  willingness  to  return  voluntarily,
unknown residence or identity of the person, missing travel documents or difficulties
in co-operation with some states in issuing identity or travel documents; resistance to
return of the  returnee; absence of  adequate means of transportation. Member States
have,  therefore,  developed  a  variety  of  practices  in  order  to  overcome  these
difficulties.  Experience  has  been  gained  with  different  concepts  or  countries  of
return.  The  improvement  of  co-operation  between  the  Member  States  based  on  the
experience gained is vital to solve practical problems.

10

Cf. conclusions no. 33-36.

9

                                                
Information exchange on such experience is clearly the first step of any co-operation
among  Member  States.  The  improvement  of  existing  schemes  to  exchange  know-
how and best practices is, therefore, important and the best starting point for further
successful  co-operation.  This  includes  the  exchange  of  return  statistics,  the
networking  of  authorities  and  the  development  of  certain  guidelines  on  best
practices.

Such non-binding guidelines require to some extent mutual consent to the effect of a
given  best  practice11.  Moreover,  when  considering  the  question  of  whether  joint
training of  return practitioners should be organised, a basic  common  understanding
or certain minimum  rules  on  return  enforcement  appear  indispensable.  Certain  pre-
defined training schemes or standards are needed to achieve common training results.

Concrete  operational  co-operation  in  terms  of  assistance  in  individual  cases  again
requires  that  certain  rules  be  developed  and  adhered  to,  in  particular  for  cases  of
identification  where  the  exchange  of  personal  data  is  envisaged.  Moreover,  mutual
assistance or even joint operations are destined to fail if the enforcement staff of one
Member State cannot comply with the legal requirements of another Member State.
Common standards could, therefore, at least facilitate, if not create the possibility of
having  joint  operations.  The  legality  of  the  enforcement  act  must  be  beyond  doubt
during all stages of the return operation. This is to be taken into account in particular
in cases of returns in transit through another Member State.

A binding regime for the mutual recognition of return decisions must be seen as the
key factor for an effective operational co-operation. The Commission believes that it
is  time  that  the  EU  takes  a  fresh  look  at  this  key  factor,  as  co-operation  between
Member States would otherwise remain rudimentary. A return should be assumed as
being successful only if the illegal resident concerned has left the territory of the EU
rather than of a particular Member State, if no other Member State has granted legal
residence. The preferred option is – as a matter of course – the sustainable return to
the country of origin. The mere continuation of illegal residence in another Member
State is anyway an unsatisfactory option, even if it at present occurs in practice.

Consequently, Member States must ensure that the effect of a return measure is not
limited to their own territory. Only the binding mutual recognition of return decisions
can lay the foundations so that in the medium-term enforcement activities, including
mutual assistance and co-operation, finally lead to the desired results. To that end an
approximation of the legal conditions for the ending of residence is a prerequisite.

A  comprehensive  Community  return  policy  should  be  gradually  developed  by
identifying short-term measures that can be implemented immediately. These short-
term  measures  could  focus  on  some  practical  steps  for  operational  co-operation.
Nevertheless,  a  fully-fledged  return  action  programme  must  additionally  contain
medium-term  legislative  measures,  which  will  smoothen  the  co-operation  among
Member States, such as the binding mutual recognition of return decisions.

11

Cf.  the  best  practices  found  in  the  EU  Schengen  Catalogue,  External  borders  control,  Removal  and
readmission: Recommendations and best practices, Council of the European Union, 28 February 2002.

10

                                                
2.2.  Operational co-operation among Member States

2.2.1.  Definitions

Due  to  different  concepts  and  legal  systems,  the  terminology  in  the  field  of  return
differs  and  often  causes  confusion.  Some  common  definitions  would  already
facilitate  the  practical  co-operation  by  improving  mutual  understanding.  The
discussion on the first set of definitions as proposed in the Green Paper has begun.
These  definitions  are  for  now  of  preliminary  and  non-binding  character.  However,
they may serve at a later stage as a starting point for legislative work in the field of
return. An updated set of definitions is attached (see Annex I).

The common  definitions  should  be  used  in  future  documents  insofar  as  possible  in
order to streamline terminology and thereby to avoid linguistic confusion.

2.2.2.  Statistics and information exchange

The Conclusions of the JHA Council of May 2001 regarding common analysis and
the improved exchange of Statistics on Asylum and Migration12 consider that there is
a need for a  comprehensive and coherent  framework  for  improving statistics in  the
area of asylum and migration. The Commission will put forward an  Action Plan to
implement the Council Conclusions shortly. The Action Plan will cover a variety of
measures,  such  as  new  statistical  methods  and  the  extension  of  existing  data
collections. It shall be applicable to existing Community statistics on return measures
as well as to any future statistics the Council may decide to start collecting.

Work has already started on one particular objective of the Conclusions, namely the
publication of a comprehensive annual report on statistics in the area of asylum and
migration. It is envisaged that the first report, on 2001 data, will be published in early
2003. In the section on return, figures will include the total number in each Member
State  of  rejected  applicants  for  asylum  returned  and  other  persons  removed.  In
addition, figures shall be broken down according to the type of return (voluntary or
forced).  Reliable  and  comparable  figures  will  help  to  demonstrate  more  clearly  the
scale of the challenges faced by Member States in the area of return.

After  the  publication  of  the  report  an  assessment  should  be  made  of  what  other
figures may be collected and how the return figures on types of return can be made
more comparable.

2.2.3.  Networking authorities

Co-operation  starts  with  using  contacts  and  with  an  informal  exchange  among
individuals.  In  recent  years  the  information  exchange  on  return  among  Member
States  has  taken  place  mostly  at  ministerial  expert  level.  Member  States’
practitioners  tended  to  contact  each  other  on  an  ad  hoc  basis,  on  the  occasions  of
bilateral or multilateral talks, workshops, meetings, conferences or seminars, which
did  not  necessarily  take  place  in  the  EU  context.  A  systematic  overview  of  the
organisation  and  responsibility  of  Member  States’  return  enforcement  services,

12

Cf. Council Doc. 7973/01 ASIM 10.

11

                                                
which  would  facilitate  working  contacts  amongst  different  Member  State  officials,
does not exist.

An up-to-date and easily accessible list of national contact points, including contact
points  in  national  return  travel  document  units  and  other  related  enforcement
services,  would,  therefore,  assist  in  addressing  other  Member  States’  enforcement
services.

The Commission has started to develop a web-based Information and Co-ordination
Network  (ICONet),  which  is  designed  as  a  secure  Intranet  website  for  Member
States’ migration management services provided by the Commission. This site could
include  a  section  for  return  services.  This  return  section  could  provide  lists  of
(central) return enforcement authorities, which could be updated in real time.

The Commission will include a return section in the web-based Information and Co-
ordination  Network  (ICONet),  which  would  provide  contact  details  for  Member
States’ return enforcement services.

2.2.4.  Best practices and guidelines

The exchange of best practices is another important tool of operational co-operation.
Based  on  the  experience  in  the  Schengen  context  Member  States  have  already
developed  a  catalogue  with  recommendations  and  best  practices  on  removal  and
readmission  on  28  February  200213.  On  the  same  date  the  Council  adopted
conclusions on the particular aspect of  obtaining  travel  documents  for the  return of
illegal residents. On the basis of Member States’ contributions to a questionnaire, an
overview will be established on the different experiences made in the practice with
laissez-passer  documents,  e.g.  if  the  EU  standard  travel  document14  is  regularly
accepted by a third country or not.

This overview - and in the future other summaries on return and readmission related
matters - should be compiled, analysed and discussed. The creation of a handbook of
best  practices,  focusing  on  both,  their  implementation  and  the  resources  for  their
implementation,  could  be  envisaged.  This  would  help  operational  services  to  profit
from  the  experience  of  others  and  to  ensure  coherence  from  third  countries  in  the
processing  of  requests  for  the  issuing  and  acceptance  of  return  travel  documents.
Moreover,  such  a  handbook  could  contain  certain  guidelines,  which  would  also  be
the common basis for joint training.

A handbook of best practices on return and readmission should be developed, which
contains guidelines for better performance based on best practices in Member States.
The first edition should focus on obtaining return travel documents.

2.2.5.  Joint training

Return enforcement is a very difficult and demanding task and should be carried out
by a specialised service, which calls for specific know-how. Any person responsible
for carrying out such a high-profile task needs to have various skills such as proper

13

14

EU  Schengen  Catalogue,  External  borders  control,  Removal  and  readmission:  Recommendations  and
best practices, Council of the European Union, 28 February 2002.
Cf. OJ C 274 of 19 September 1996, p. 18.

12

                                                
knowledge  of  the  legal  competencies,  adequate  treatment  of  returnees,  the
management  of  incidents,  intercultural  understanding  and  negotiation  techniques.
Member  States  must  provide  special  training,  which  enables  staff  to  conduct
removals in an appropriate manner.

The challenges of enforcing returns should be the subject of joint seminars or regular
meetings of persons responsible for the development of training schemes used in the
training  facilities.  For  the  sake  of  efficiency  it  seems  advisable  to  use  initially  the
network of national training facilities for border management, which was foreseen by
the  Council’s  action  plan  on  illegal  immigration  of  28  February  200215.  In  case  of
diverging  responsibilities,  consideration  could  be  given  to  the  establishment  of  a
similar network of responsible  return training facilities.  In addition, Member States
should offer training courses to officials from other Member States in their training
facilities.  This  could  start  with  subjects  that  are  –  without  further  adjustment  -  of
common  interest  and  that  are  not  focussed  on  specific  needs  due  to  national
legislation.

Nevertheless,  joint  training  schemes  could  be  developed,  which  would  also  cover
subjects where national practices differ, such  as in the case of the  use  of  restraints.
Such  schemes  could  be  worked  out  more  easily  on  the  basis  of  common  standards
laid down in guidelines as described before in 2.2.4. Common standards have already
been requested in the Council’s plan for the management of the  external borders of
the Member States of the European Union of 13 June 2002 as far as standard security
measures are concerned, which should be set up with regard to return in aeroplanes,
ships and other means of transportation16.

Intensive  joint  training  should  be  made  possible  with  the  creation  of  common
security  standards,  a  network  of  return  training  facilities,  the  development  of  joint
training schemes and the participation in training courses of other Member States.

2.2.6.  Better identification and documentation

It should be recalled that the main obstacle to return is unclear identity and the lack
of proper travel documents. Potential returnees are mostly responsible for this lack of
documentation  since  it  is  generally  known  that  countries  of  origin  often  delay  or
deny  the  issuing  of  return  travel  documents  because  of  missing  information  on
nationality or identity. In order to avoid removal, illegal residents therefore may hide
or  destroy  their  travel  documents  and  not  infrequently  claim  a  completely  false
identity  and/or  nationality.  As  a  consequence,  lengthy  and  expensive  procedures
have  often  to  be  carried  out,  which  include  presentation  at  several  embassies  of
neighbouring third countries or a language or dialect analysis.

A  key  element  in  solving  return-related  problems  is,  therefore,  the  carrying  out  of
suitable identification measures during administrative procedures, e.g. at visa posts,
when the person  concerned has an interest in providing correct  data.  Following the
Commission’s  proposal  the  Council  agreed  on  the  establishment  of  an  online
European Visa Identification System17 in its action plan on illegal immigration of 28

15

16

17

Council Doc. 6621/1/02 rev.1, JAI 30.
Cf. Council Doc. 10019/02 FRONT 58.
The present Commission’s working title is “Visa Information System”.

13

                                                
February  2002.  The  Commission  is  currently  assessing  the  technical  feasibility  of
such a Visa Information System.

The  study  should  assess  in  particular  an  important  return  related  component:  the
storage of an electronic photo or other biometric identifier combined with the scan of
the  travel  document  as  shown  by  the  visa  applicant.  The  availability  of  this
information in  a  central database would have  a  substantial  added  value, despite  the
fact  that  photos  are  already  today  mostly  requested  for  visa  applications  and  travel
documents copied. The difficulty is that even existing information is only accessible
under the condition that the corresponding travel document is available. This creates
a dependence on the willingness of its holder to present it, which, in cases of illegal
residence, is obviously low. The aim is, therefore, to overcome this obstacle and to
identify  persons  without  the  need  for  their  co-operation.  With  the  help  of  the
biometric  identifiers  in  the  Visa  Information  System  apprehended  undocumented
illegal residents could be retrieved and, in cases of prior visa applications, identified.
The scan of the travel documents could be used as a clear proof for the third country
concerned, when return travel documents are requested.

It is expected that the system will reduce significantly the time and costs incurred as
a  result  of  illegal  residence,  including  the  detention  time  for  the  returnee  pending
removal.  In  addition,  the  visa  issuing  practice  could  be  reconsidered  due  to  an
obvious change in the risk assessment. The return component in the Visa Information
System  could  allow  a  quicker  and  smoother  handling  of  the  whole  visa  practice,
because Member States would have a  real  chance to identify and remove mala  fide
travellers,  independent  from  the  paper  documentation  or  irrespective  of  in  which
Member  States’  representation  a  visa  has  been  issued.  Consequently,  bona  fide
travellers would profit from this system.

A  central  function  of  the  future  Visa  Information  System  should  be  the  return
component so that undocumented persons can be identified after apprehension in the
Member  States  with  biometric  means  in  order  to  retrieve  the  existing  personal
information, in particular a scan of the travel document as presented in the visa post.

2.2.7.  Readmission and transit rules among Member States

As mentioned in the Commission’s Green Paper, readmission among Member States
takes place mostly on the basis of bilateral readmission agreements or informal  co-
operation18. 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  nationals19.  The  discussion  was  suspended  due  to  the
negotiations  on  the  transfer  of  the  mechanism  for  the  determination  of  the
responsibility  for  asylum  claims  into  Community  law,  Dublin  II20.  Since  the
negotiations on this subject have progressed substantially, the general framework for
readmission  among  Member  States  concerning  all  illegally  resident  third-country
nationals should be put on the agenda again.

18

19

20

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
protection. Cf. also COM (2001) 127 final., Art. 26 of the proposal on long-term residents.
OJ C 353 of 7 December 1999, p.6.
Cf. COM (2001) 447 final.

14

                                                
Moreover, 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  is  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  to  return.  To  that  end
Germany has launched an initiative for a Council Directive on assistance in cases of
transit for the purpose of return by air21. In this context, account should be taken of
annex 9 of the Convention on International Civil Aviation22. Furthermore, it should
be  discussed  how  other  countries  of  destination  could  be  integrated  in  an  EU  air
transit regime.

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.

The general framework for readmission among Member States should be put back on
the agenda once the Regulation on Dublin  II is adopted based on a proposal by the
Commission.

Assistance in cases of transit in particular for the purpose of return by air should be
subject  to  certain  rules.  Subsequently  the  transit  by  other  means  of  transportation
should be tackled.

2.2.8.  Mutual assistance by immigration liaison officers

Immigration liaison officers (ILO), who  are  posted in countries of  origin or  transit,
have  regular  contacts  with  the  local  authorities,  in  particular  the  border  guard  and
immigration authorities at airports. Such working relations should be made available
for return-related tasks.

On  the arrival of  returnees in  the  country  of return  the presence of an  ILO may be
helpful for a smoother hand-over procedure for readmission.  In  addition,  assistance
for the escorts could be offered. The network of immigration liaison officers should
be further developed to that end.

Wherever  possible  Member  States  should  offer  and  provide  mutual  assistance  in
facilitating returns in the country of return.

2.2.9.  Joint Return Operations

Removals are increasingly carried out with charter flights for different reasons. Some
Member States use small charter jets in cases of non-compliant forced returns, which
have  proven  extremely  expensive.  Some  Member  States  charter  larger  aircraft  to
allow for higher numbers to be returned with the necessary escorts. This practice is

21

22

Cf. Council Doc. 10386/02 – MIGR 60 of 27 June 2002.
“Chicago Convention” of 7 December 1944.

15

                                                
also costly especially when the capacity cannot be fully utilised, which often happens
due  to  the  unavailability  of  the  returnee  because  of  absconding,  illness  or  major
resistance of the returnee or legal action at a very late stage to avoid removal.

Member  States  could  enforce  returns  more  efficiently  if  they  could  share  existing
capacities by organising joint operations. Provided that adequate transit arrangements
are  established,  Member  States  should  seek  to  carry  out  joint  charter  flights  for
voluntary  and  forced  returns.  Joint  charter  flights  have  already  been  organised  as
pilot  projects  on  a  bi-  or  trilateral  basis  among  Member  States  or  other  destination
countries.  The  development  of  this  practice  would  not  only  have  financial
advantages, but the signal effect would be higher as well.

Joint return operations should be organised by  Member States starting  with bi- and
multilateral joint charter flights. In addition, other joint return operations by land or
sea could be envisaged, where appropriate.

2.2.10. Better co-ordination

Enhanced  co-operation  as  described  above  requires  an  adequate  framework  for  co-
ordination.  As  mentioned  before23,  the  creation  of  ICONet,  the  secure  web-based
Information and Co-ordination Network, could be conducive to that end. Apart from
contact  information  this  website  could  provide  for  other  return-related  services.  It
could  contain  a  tool,  which  allows  an  online  transit  notification  from  one  Member
State to another using a unified form as suggested in the German initiative on transit
by  air.  Additionally,  ICONet  could  be  used  to  co-ordinate  among  Member  States
joint  charter  flights  to  enforce  returns.  Furthermore,  ICONet  could  also  give
information  on  contact  points  in  third  countries  or  other  information  on  third
countries that is relevant for return operations.

Nevertheless, a website cannot replace personal interaction, which is clearly needed
to  reach  an  advanced  level  of  co-operation.  Co-operation  and  in  particular  co-
ordination could be assisted by setting up a technical support facility as advocated by
the  Commission  in  the  recent  Communication  on  the  Common  Policy  on  Illegal
Immigration24.  Multiple  tasks  would  be  entrusted  to  such  a  facilitating  body.
Gathering, analysing and disseminating information on return, moderating a dialogue
among  return  practitioners,  organising  expert  meetings,  preparing  joint  training
courses or helping to organise joint operations are just some examples of what could
be done. In order to prove the usefulness of such a technical support facility it should
be limited in the beginning to a small secretariat, where a number of national experts
should concentrate on certain priority activities. A technical support facility could be
financed  with  support  offered  by 
the  ARGO  administrative  co-operation
programme25, which is also available for return co-operation among Member States.

Better  co-ordination  of  an  enhanced  operational  co-operation  on  return  should  be
achieved  with  the  development  of  the  Information  and  Co-ordination  Network.  In
addition, the creation of a technical support facility could be envisaged to that end.

23

24

25

Cf. 2.2.3
COM (2001) 672 final.
Cf. Council Decision of 13 June 2002, OJ L 161 of 19 June 2002, p.11

16

                                                
2.3.  Common minimum standards to ensure efficient return policies

Co-operation among Member States as described in the chapter 2.2 above is likely to
be  successful  if  based  on  a  common  understanding  on  key  issues.  Consequently,
common standards should be set in the medium-term in order to facilitate the work of
the services involved and to allow enhanced co-operation among Member States. In
the  long  term  such  standards  should  establish  rules  for  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.  For  these
reasons the Commission intends to take the appropriate initiatives.

2.3.1.  Mutual recognition of return decisions

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  is  of  major  importance  to  the  operational  co-operation  on  return
enforcement  in  the  EU,  in  particular,  where  inner  border  controls  do  not  exist.  An
expulsion  decision  issued  by  one  Member  State  should  be  enforced  in  another
Member  State  without  the  latter  having  to  issue  a  new  expulsion  decision.  The
Directive  2001/40/EC  on  the  mutual  recognition  of  decisions  on  the  expulsion  of
third-country  nationals26  underlines  this  necessity,  although  it  has  not  established  a
binding framework.

The mutual recognition of expulsion decisions regarding persons who have applied
for  asylum  requires  special  attention,  for  Member  States  interpret  the  Geneva
Convention  in  different  ways  and  also  have  different  grounds  for  subsidiary
protection. According to the Tampere European Council of 1999, a common asylum
procedure  and  a  uniform  status  is  the  objective  in  the  longer  term.  The  Seville
Council  of  June  2002  confirmed  this  objective,  adding  deadlines  for  specific
Directives  to  be  adopted.  The  Commission  therefore  reiterates  its  step-by-step-
approach, proposed in its Communication of November 200027, emphasising the link
between mutual recognition and harmonisation on asylum.

The  establishment  of  a  legally  binding  framework  for  mutual  recognition  of  all
measures  terminating  a  residence,  in  particular  expulsion  decisions,  should  be
integrated in a future proposal on return procedures.

2.3.2.  Removal

Removal, as the closing act of enforcing the return of the person concerned, should
be  subject  to  minimum  standards,  safeguarding  both  the  rights  of  the  person
concerned  and  the  effectiveness  of  the  removal.  Minimum  standards  will  facilitate
operational  co-operation  between  Member  States  during  transit  or  joint  removal
operations as well.

As long as Member States have different asylum systems in place, a final safeguard
for non-refoulement appears necessary to enable Member States to comply with their
international  obligations,  if  the  risk  for  refoulement  has  not  been  examined  before.

26

27

Cf. OJ L 149 of 2 June 2001, p. 34.
COM (2000) 755 final.

17

                                                
Such a final safeguard should refer to the asylum procedure in place, which includes
an effective remedy.

Minimum  standards  should  also  strike  a  proper  balance  between  preventing  abuse
due to feigned diseases while taking into account the real physical state and mental
capacity of the  persons  concerned.  If the returnee  claims  physical  or  mental  illness
immediately before departure, this could be an attempt to frustrate the removal, but it
could also be a  genuine claim. A proper assessment must be carried out, especially
with  regard  to  vulnerable  groups  such  as  minors  and  pregnant  women.  Minimum
standards should also deal with the conditions under which a family can be separated
during the removal procedure.

Member  States  should  be  allowed  to  remove  a  person  despite  his  or  her  (physical)
resistance. Yet it must be clear that coercive measures have their limits. The physical
integrity of the returnee during the removal is of utmost importance. The returnee’s
psychological  condition  must  also  be  respected.  Standards  are  needed  covering  the
intensity  of  coercive  measures.  As  far  as  removals  by  air  are  concerned  the
IATA/CAWG  Guidelines  on  Deportation  and  Escort  could  provide  the  basis  for
developing EU provisions on escorting and use of restraints.

the  actual  situation  makes  removals  questionable  due 

Co-operation  on  removals  touches  on  the  question  of  how  Member  States  can
streamline  their  present  return  practice  in  relation  to  specific  countries  of  origin  in
case 
to  compelling
humanitarian reasons (a contemporary example is Angola). If Member States want to
co-operate on this, it seems logical to have minimum standards on the assessment of
such situations. This could include consultation of organisations such as UNHCR or
UN Administrations (e.g. UNMIK in Kosovo) or other relevant actors.

Minimum standards on removal should be set at EU level, setting a final safeguard
for  non-refoulement  requirements  in  a  future  Directive  on  Minimum  Standards  for
Return  Procedures,  defining  common  guidelines  for  removal  on  the  physical  state
and mental capacity of the returnee as well as on the returnee’s integrity during the
removal  operation.  Moreover,  an  assessment  mechanism  should  be  established,
which  would  allow  assessment  of  the  actual  situation  in  certain  countries  as  to
whether removals are feasible or not.

2.3.3.  Preconditions for expulsion decisions

Decisions  on  expulsion  are  taken  at  Member  States  level,  until  now  according  to
national  law.  The  Council  already  provided  for  initial  standards  for  expulsion
decisions  in  Directive  2001/40/EC  on  the  mutual  recognition  of  decisions  on  the
expulsion of third-country nationals adopted in May 200128. This Directive provides,
inter alia, that a third-country national is the subject of an expulsion decision in case
of a serious and actual threat to public order or to national security in two groups of
cases.

In order to further develop the idea of mutual recognition of expulsion decisions, the
Commission takes as a starting point the distinction between mandatory reasons for
expulsion  decisions  on  the  grounds  of  extraordinary  danger  for  public  order  or

28

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

18

                                                
national  security  and  other  legitimate  reasons,  which  would  normally  lead  to  an
expulsion decision.

This  distinction  should  take  proper  account  of  the  conditions  and  safeguards  that
have to be fulfilled in order to end the legal residence of certain groups. Privileged
third-country nationals such as long-term residents29 or family members of a Union
citizen may only be removed for grave reasons of public security and public order.30
Special  considerations should also apply  in the case of  third-country  nationals  who
are born in a Member State and have never lived in their country of nationality.

The expulsion of refugees as well as other persons under other forms of international
protection  requires  special  attention,  for  they  can  only  be  removed  in  accordance
with international obligations such as the 1951 Geneva Convention and the European
Convention on Human Rights. In general, a decision for expulsion should in all cases
be based on the individual situation. The human rights of the person concerned and
whether  the  measure  is  proportionate  must  be  adequately  considered.  A  judicial
remedy should be available, including the possibility to ask for suspensive effect.

Minimum  standards  on  expulsion  decisions  should  be  set  at  EU  level,  defining
mandatory  and  other  grounds  for  expulsion,  identifying  groups  with  specific
protection  needs  and  setting  minimum  safeguards  for  judicial  review  in  the
framework of a future Directive on Minimum Standards for Return Procedures.

2.3.4.  Ending of legal residence

The  Commission  proposes  that  a  person  can  be  obliged  to  leave  the  territory  of  a
Member State from the moment legal residence has ended. This includes rejection of
an application for residence (either on grounds related to international protection or
migration), expiration of a residence permit or withdrawal / revocation of it (e.g. on
grounds of public order or national security), but also the ending of illegal residence
of a person who has never had legal residence in the Member State concerned. Legal
residence is also considered to have ended if a remedy against a decision concerning
the right  to stay  on  the  territory  of  the  Member  State  has  no  suspensive  effect.  All
these persons should have a legal obligation to leave the Member State immediately
or, if a time limit for departure has been set, before the expiry of the time limit. Seen
from the EU level,  the  obligation  to  leave  should  be  an  obligation  to  leave  the  EU
and not just a Member State.

Co-operation  among  EU  Member  States  would  ensure  that  persons  who  have  no
legal residence in one Member State will not leave for another Member State if they
will not be allowed legal entry and residence there. To that end, the Commission will
elaborate on the approximation of measures terminating illegal residence applicable
throughout the EU.

2.3.5.  Detention pending removal

The  Commission  acknowledges  the  need  for  Member  States  to  provide  for  the
possibility of detention pending  removal.  However,  a  fair  balance  should  be  struck

29

30

Cf. Art. 13 of COM (2001) 127 final.
Cf. the clarifications in ECJ, case C-459/99, MRAX, judgment of 25 July 2002.

19

                                                
between the Member States’ need for efficient procedures and safeguarding the basic
human  rights  of  the  illegal  resident.  Minimum  standards  at  EU  level  defining  the
competencies of responsible authorities and the preconditions for detention should be
set  also  in  order  to  make  operational  co-operation  between  Member  States  during
transit or joint removal operations easier. These minimum standards could cover:

(cid:1)  Grounds  for  detention  pending  removal.  This  covers  detention  of  the  illegal
resident  concerned  in  order  to  obtain  return  travel  documents  or  to  prevent  the
illegal resident from absconding during the removal or during transit.

(cid:1)  Identification  of  the  groups  of  persons  who  should  generally  not  or  only  under

specific conditions be detained:

–  unaccompanied children and persons under the age of 18

–  the elderly, especially where supervision is required

–  pregnant women, unless there is the clear threat of absconding and medical advice

approves detention

–  those suffering from serious medical conditions or the mentally ill

–  those  where  there  is  independent  evidence  that  they  have  been  tortured  or

mistreated while being detained before they arrived in the EU

–  people with serious disabilities

(cid:1)  Rules  concerning  the  issuing  of  a  detention  order.  This  could  include  the
proportionality  of  detention  and  the  possibilities  of  suitable  alternatives  to
detention  such  as  reporting  duties,  obligatory  residence,  bail  bonds  or  even
electronic monitoring.

(cid:1)  Provisions on the judicial control. A judicial body should be competent to issue or

to revise the detention order.

(cid:1)  Time limits for the duration of detention pending removal. Although the grounds
for  detention  (e.g.  identification  or  prevention  from  absconding)  has  an  inherent
limitation of the duration, the Commission considers it necessary to provide for an
absolute  time  limit  and  time  limits  for  judicial  review  on  the  continuation  of
detention.

(cid:1)  Rules  on  the  conditions  of  detention,  in  particular  on  accommodation  standards
but also on legal assistance, to ensure humane treatment in all detention facilities
in  the  Member  States.  The  Commission’s  considered  opinion  is  that  for
accommodation  purposes  returnees  should  as  far  as  possible  be  separated  from
convicts in order to avoid any criminalisation.

Minimum  standards  on  detention  pending  removal  should  be  set  at  EU  level,
defining competencies of responsible authorities and the preconditions for detention
in  the  framework  of  a  future  Directive  on  Minimum  Standards  for  Return
Procedures.

20

2.3.6.  Proof of exit and re-entry

As indicated in the Green Paper a satisfactory proof of exit is important, in particular
in  cases  of  voluntary  return  to  ensure  sustainable  return  and  to  allow  preferential
treatment  to  voluntary  returnees,  namely  to  avoid  that  in  these  cases  persons  are
banned from a later legal re-entry due to a lack of proof of their previous voluntary
exit.  One  possibility  would  be  to  develop  incentives  for  returnees  to  report  back
personally  at  a  consular  post  of  a  Member  State  in  the  country  of  origin.  Where
applicable,  the  proof  of  exit  could  also  be  issued  by  a  reliable  organisation,  which
has been involved in the return process.

Applying the principle of the priority of voluntary return, the legal consequences of
the voluntary or forced return on an application for a subsequent re-entry should be
assessed. A refusal of a future visa application in order to re-enter the EU some time
in  the  future  should  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.  On  the
other hand restrictions should be imposed in cases of forced return.

Common  definitions  are  needed  for  determining  the  circumstances  under  which  a
new application for a visa or a residence permit is excluded. The refusal of entry list
of  the  SIS  according  to  Art.  96  of  the  Convention  implementing  the  Schengen
agreement or the future Visa Information System could be used for this purpose.

2.4.  Elements for integrated return programmes

Different  patterns  of  return  programmes  and  models  for  their  execution  have  been
developed by the international community in general over the last decade. There are
fundamentally  two  types  of  return  processes:  strictly  voluntary  return  where  an
individual  decides  of  his  or  her  own  accord  to  return  and  is  helped  to  do  so;  and
situations  where  the  state  authorities  oblige  return  with  due  and  proper  regard  to
international  law  and  the  human  rights  of  the  persons  concerned.  There  is  also  a
hybrid  situation  in  which  a  person  accepts  the  obligation  of  the  return  process  but
also accepts assistance from the authorities.

International organisations have been particularly active in this field for all types of
returns  and  have  managed  both  European  Community  and  nationally-financed
projects  with  varying  degrees  of  success,  again  depending  on  circumstances.  In
general,  the  Commission’s  experience,  starting  with  the  Joint  Actions  in  the
framework of the “Third Pillar” of the Maastricht Treaty from 1997 to 199931 which
preceded  to  the  establishment  of  the  European  Refugee  Fund  in  200032  has  shown
that  successful  return  projects  require  all  or  most  of  the  following  elements:  pre-
return  advice  and  counselling,  training/employment  assistance,  assistance  for
travelling  to  and/or  re-establishment  in  the  country  of  origin/housing,  follow-up
assistance  and  counselling  post-return.  Moreover,  the  implementing  agency  must
have  sufficient  links  to  the  authorities  and  non-governmental  community  in  the
country of origin as well as adequate facilities in the field (for example, locally-based
staff, at least on a temporary basis, with knowledge of local languages) and the skills
necessary to select, where this is appropriate, returnees with the potential to succeed

31

32

Budget lines B7-6008 and B-5-803.
Council Decision of 28th September 2000 (2000/596/EC), OJ L252 p.12.

21

                                                
once  returned.  Analysis  of  the  return-related  projects  accepted  for  financing  by  all
these  instruments  strongly  suggests  that  such  projects  are  mainly  concentrated  in  a
limited number  of  Member  States. This is due  to  the circumstances  in  the  Member
State, both the number of potential returnees and the competing needs of other issues
needing finance such as reception facilities or integration programmes.

Against these factors must be weighed the cost/benefit of return programmes. Some
projects  (for  example  concerning  Somalis  living  in  Europe)  can  be  very  costly  per
head.  Furthermore,  there  are  practically  non-quantifiable  factors  such  as  the
likelihood  of  returnees  attempting  to  come  back  to  their  host  country.  Whether  a
person, once returned to his or her country of origin, will remain there, depends on a
series of factors, such as the legal status in the host country and the issuing of a travel
documents that permit re-immigration, their economic and family circumstances, etc.

Information should be made available - as early as possible - for potential returnees
on  the  possibilities  for  voluntary  return  to  the  country  of  origin.  Such  information
should  comprise  information  on  return  programmes,  vocational  or  other  training
available, on the situation in the country of return and on possibilities for establishing
a  new  life.  Vocational  or  other  training,  which  could  be  of  use  in  the  country  of
return, might be offered, either before return or in the country of return. Assistance
and counselling should be offered at all stages of the return process starting from an
early  stage  of  residence  in  the  Member  States  until  some  time  after  arrival  in  the
country  of  destination  ensuring  sustainable  return.  In  general,  incentives  should  be
assessed,  which  would  encourage  potential  returnees  to  go  back  voluntarily.  The
Commission has,  therefore, ordered  a  study  on  incentives  for  return,  which  will  be
available  by  the  end  of  the  year.  On  the  basis  of  the  study  further  steps  should  be
considered to create sufficient incentives for return.

The  general  conclusion  to  be  drawn  from  past  experience  in  managing  return
programmes is that they must be flexible regarding their timing and administration in
order to respond to circumstances on the ground. This requires a more cohesive use
of Community-based programmes and national programmes  backed by clear policy
guidelines to that end.

In  addition  to  the  Joint  Actions  of  1997  to  1999  and  the  European  Refugee  Fund
(ERF),  the  Commission  has  also  used  budget  line  B7-667  (for  which  a  legal  basis
will be proposed by the end of 2002) in relation to the activities of the High  Level
Working  Group  on  Asylum  and  Immigration  for  return-related  issues.  The
Commission will shortly be entering a phase when it will be considering the future of
the  ERF  one  of  whose  main  strands  is  voluntary  return.  Given  the  requirements  of
the European Council in Seville33, the Commission will need  to  reflect on  both  the
optimum  financial  and  co-ordination  mechanisms  for  return.  The  Commission  will
present a report to the Council in the early autumn of 2002 on the budgetary aspects
of the conclusions of the European Council.

The  scope  of  financial  assistance  for  return  should  cover  voluntary  return,  forced
return and support for return of irregular migrants in transit countries.

33

Cf. no. 33 of the conclusions.

22

                                                
The voluntary return element in a financial assistance for return would target return
and reintegration of both illegal residents and legal residents, if  they  wish to  return
and  there  is  a  public  interest  in  supporting  this.  Items  like  individual  travel  costs,
transport of personal possessions, the first expenses after return and a limited start-up
support could be taken into consideration in this framework.

The  second  element  of  such  a  financal  assistance  scheme  strictly  limited  to  illegal
residents  -  would  be  the  financial  support  for  enforcement  measures.  This  element
would  contribute  emphasising  the  need  for  solidarity  and  burden-sharing  among
Member  States  on  return  with  regard  for  instance  to  travel  costs  for  returnees  and
escorts.

The  third  element  of  a  financial  assistance  for  return  would  focus  on  interception.
Third  countries  could  be  assisted  in  returning  irregular  migrants  insofar  as  they  do
not  fulfil  the  entry  conditions  of  the  country  concerned,  they  are  not  in  need  for
international protection and the persons are in transit with a view to entering the EU
illegally.

The  EU  should  develop  its  own  approach  for  integrated  return  programmes.  Such
programmes  should  cover  all  phases  of  the  return  process,  starting  with  the  pre-
departure phase, the return as such, the reception and reintegration in the country of
return.

Integrated  return  programmes  should  be  tailored  to  specific  countries  to  take  the
specific situation, the case load and needs of the country duly into account.

Further  consideration should be given to  a financial instrument,  which might cover
voluntary return, forced return and support for return of irregular migrants in transit
countries.  The  Commission  will  come  back  to  this  issue  soon  when  presenting  the
report on financial instruments in the area of immigration and asylum.

2.5. 

Intensification of co-operation with third countries

In order to strengthen the co-ordination and improve complementarity and coherence
of the external actions of the Union, the intensification of EU co-operation with third
countries on return should be carried on, on a case by case basis, in the context of the
elaboration  or  revision  of  the  country  strategy  papers  and  regional  strategy  papers,
which elaboration or revision falls under the Commission responsibility and to which
the  Member  States  are  fully  associated.  Furthermore,  the  specific  situation  of  the
candidate  countries shall always be taken into  account,  which  includes  making  full
use of the mechanisms of the Association agreements.

2.5.1.  Enhanced administrative co-operation

The  intensification  of  co-operation  with  third  countries  on  return  would  start  with
enhancing  administrative  co-operation.  Where  appropriate,  the  EU  could  offer
support in the institution and capacity building for the reception and reintegration of
returnees.  Technical  co-operation  might  be  envisaged  as  well.  Principally,
consideration should be given to all reintegration measures, which help to ensure the
sustainability  of  the  return,  such  as  e.g.  start-up  support  for  housing  or  the
reintegration  in  the  labour  market  including  vocational  training.  Finally,  the  return

23

dimension should be part of the overall political dialogue on migration related issues
with the country concerned.

The  EU  should  promote  enhanced  administrative  co-operation  with  third  countries,
which should address all stages and levels of the return process.

2.5.2.  Community readmission agreements

The  Seville  European  Council  also  called  for  the  speeding-up  of  the  conclusion  of
readmission agreements already being negotiated.  As previously stated in  its Green
Paper,  the  Commission  will  therefore  make  a  further  effort  to  push  forward  the
current  negotiations  in  order  to  complete  them  in  due  time  and  –  to  the  extent
possible - in line with the negotiating directives issued to it. To achieve this, it will
need a greater level of political and diplomatic support from the Member States than
they have been willing to provide so far. However, from the very diverging course of
negotiations  with  the  first  seven  countries,  it  is  already  possible  to  draw  one
important conclusion. As readmission agreements work mainly in the interest of the
Community,  third-countries  are  naturally  very  reluctant  to  accept  such  agreements.
Their successful conclusion, therefore, depends very much on the positive incentives
("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
concessions or the lifting of visa requirements can be a realistic option in exceptional
cases only (e.g. Hong Kong, Macao); in most cases it is not. It is, therefore, essential
to give more thought to the crucial question of what other incentives, not only from
the JHA area but from all Community areas (e.g. trade expansion, technical/financial
assistance, additional development aid etc.) could be offered to the relevant countries
in return. Although the Seville  European Council stressed – once again –  the  EU’s
willingness  to  provide,  within  the  limits  of  the  financial  perspective,  adequate
technical and financial assistance, no satisfactory answer was given to the question of
how to deal with countries that, despite this offer, are not interested in concluding a
readmission agreement.

therefore,  continue 

The  Commission  will, 
incentives  or
compensations  in  the  context  of  readmission  agreements  in  consultation  with  the
Member  States,  in  particular  by  reflecting  on  the  possibility  of  increasing
complementarity with other policy areas, including political and diplomatic measures
by Member States, in order to help achieve the Community’s objectives in the field
of return and readmission.

its  reflection  on 

2.5.3.  Transit and admission arrangements and agreements with other third countries

If direct returns to the country of origin are not possible or appropriate, other avenues
of co-operation with third countries should be explored. In particular in the  case of
practical  obstacles,  such  as  complicated  or  non-existing  travel  connections  to  the
country  of  origin,  possible  transit  countries  could  be  approached  with  a  view  to
gaining their support relating to the – voluntary or involuntary – transit of returnees
through their territory.

Transit provisions should be systematically included in any Community readmission
agreement  and,  in  the  absence  of  such  agreements,  separate  transit  arrangements
should be envisaged, where appropriate.

24

3. 

CONCLUSIONS

Following  the  mandate  of  the  Seville  European  Council  of  21  and  22  June  the
Commission herewith presents the essential elements of a Return Action Programme,
which the Council is asked to endorse by the end of the year.

The  Commission  has  identified  a  number  of  actions,  in  particular  in  the  area  of
operational co-operation, which require a stronger commitment of the Member States
enforcement  services  and  could  be  achieved  in  the  short  term.  In  addition,  a
Community  Return  Action  Programme  requires  a  vision  which  would  build  a
comprehensive package for medium-term measures at EU level. This should include
enhanced  operational  co-operation  based  on  common  co-ordination  and  –  where
necessary – legislative adjustments.

The Council is invited to endorse the Return Action Programme before the end of the
year in line with the mandate of the Seville European Council.

25

Term

Return

Illegal resident

Illegal entrant

ANNEX –Definitions

Definition

Comprises the process of going back to one’s country of origin, transit or another third
country, including preparation and implementation. The return may be voluntary or
enforced.

Any person who does not, or no longer, fulfil the conditions for presence in, or
residence on the territory of the Member State of the European Union.

Any person who does not fulfil the conditions for entry in the territory of the Member
States of the European Union.

Voluntary return

The assisted or independent departure to the country of origin, transit or another third
country based on the will of the returnee.

Forced return

Readmission

Readmission
agreement

Expulsion

The compulsory return to the country of origin, transit or another third country, on the
basis of an administrative or judicial act.

Act by a state accepting the re-entry of an individual (own nationals, third-country
nationals or stateless persons), who has been found illegally entering to, being present
in or residing in another state.

Agreement setting out reciprocal obligations on the contracting parties, as well as
detailed administrative and operational procedures, to facilitate the return and transit of
persons who do not, or no longer fulfil the conditions of entry to, presence in or
residence in the requesting state.

Administrative or judicial act, which states – where applicable – the illegality of the
entry, stay or residence or 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 pending
removal

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

Detention order

Administrative or judicial decision which forms the legal basis for the detention
pending removal

Removal34

Removal order

Legal re-entry

Rejection

Transit

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

Administrative or judicial decision to lay the legal basis for the removal (in some legal
systems synonymous with expulsion order).

Admission of a third-country national or stateless person to the territory of the Member
State of the European Union after prior departure.

Refusal of entry to a state

Passage through a country while travelling from a country of departure to the country
of destination.

34

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

26