Opinion of the European Economic and Social Committee on the "Communication from the Commission to the Council and the European Parliament on a Community return policy on illegal residents" (COM(2002) 564 final)
Date: 2002-12-11
Institutions: European Economic and Social Committee
Subjects: EU migration policy, action programme, cooperation policy, exchange of information, residence permit, standard

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— tissue bank or cell therapy unit: preparation process,
microbiological
tests (transmissible diseases, bacteria,
etc.), biological and functional validation, traceability and
biomonitoring;

— transplant surgeon: risk/benefit analysis in the light of the
health profile of the product and the vital urgency for the
patient, traceability.

8.5.
Provision should be made for a Europe-wide agreement
between healthcare establishments that supply and/or use

tissues (likewise for cell therapy units and healthcare establish-
ments).

8.6.
The appendices are an integral part of the Directive,
but there is a risk that their regular updating could be hindered
for administrative reasons. For this reason, the EESC believes
that Article 29 should mention the regular modification of
these appendices to take account of scientific progress, and
make it obligatory to update.

Brussels, 11 December 2002.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘Communication from the
Commission to the Council and the European Parliament on a Community return policy on
illegal residents’

(COM(2002) 564 final)

(2003/C 85/15)

On 14 October 2002 the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned
communication.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 25 November 2002. The rapporteur, working
without study group, was Mr Pariza Castaños.

At its 395th plenary session (meeting of 11 December 2002) the European Economic and Social
Committee adopted the following opinion by 103 votes to one with ten abstentions.

1. Summary of the Commission proposal

Return policy is presented by the Commission as
1.1.
immigration and asylum policy. The
an integral part of
Commission notes that, on the one hand, legal immigration
channels must be consolidated and protection given to those
needing it and, on the other, illegal residents must be returned
(preferably voluntarily, but by force if necessary), since ‘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 achieve’ (1) Hence a return policy is a necessary
adjunct to a comprehensive immigration and asylum policy.

1.2.
The Commission’s communication also responds to
the call of the Seville European Council of 21 and 22 June
2002 for the approval by the end of the year of the basic
components of an expulsion and repatriation policy.

1.3.
Before establishing the bases of a return policy, the
Commission had already opened a broad debate on the issue.

(1) Point 1.22 (2nd para.) of the communication.

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To this end it presented a green paper (1) and initiated a debate
which culminated on 16 July 2002 in a conference attended
by organisations and institutions from all the Member States
and applicant countries. The EESC also participated in this
conference.

— assistance between Member State authorities for the
transit of returnees where it
is necessary to use the
airports of other Member States or transit through their
territory, whether the return be forced or voluntary;

1.4.
The present communication addresses only the return
of irregular residents (or illegal residents, in the terminology
used in the communication). A further communication will
deal with the return of legal residents who wish to return to
their country of origin and how their return could benefit the
development of that country.

1.5.
The aspect examined by the communication in greatest
depth is cooperation between the Member States to streamline
the repatriation of illegal residents. To this end it calls for
short-term measures in the field of operational cooperation
and for medium-term legislative measures to establish some
common standards for the mutual recognition of Member
States’ repatriation decisions.

Short-term operational cooperation between the Mem-

1.6.
ber States includes the following:

— new statistical methods, among which the Commission
singles out the publication of a comprehensive annual
report on asylum and immigration statistics;

— direct networking between Member State authorities

responsible for managing returns;

— exchange of experience and best practice, for which a

handbook of best practices will be drawn up;

— joint

training of officials responsible for managing

returns: seminars, regular meeting, etc.;

— better identification of illegal residents who do not
present or hold any documents. For this, it is proposed
to set up a database with photo and scanned travel
documents of all persons applying for visas in any
Member State consulate;

— facilitate the work of immigration liaison officers (ILOs)

in countries of origin or transit;

— use joint charter flights to reduce the cost of repatriating

illegal residents;

— create an adequate framework for coordination based on
(i) greater use of the ICONet and (ii) setting up a technical
support facility.

The common minimum standards to be established in
1.7.
the medium term to enhance cooperation between the Member
States include the following:

— the expulsion of persons against whom an expulsion
order has been issued in one Member State and who have
been apprehended in another state. This objective raises
the need for a binding legal framework so that this second
state can execute the expulsion order issued by the first;

— minimum standards which have to be respected in the
removal procedures. For instance, how to proceed when
the person to be expelled is suffering from a physical or
mental illness, is a minor or a pregnant woman, or the
expulsion will mean breaking up a family. Also when the
physical resistance of the person to be expelled has to be
overcome, etc. It is important to reach agreement on
these minimum standards so that Member States can
cooperate with the expulsion orders issued by others;

— minimum criteria for distinguishing between mandatory
reasons for expulsion, such as a serious threat to public
order or national security, and other less serious reasons,
since the mutual recognition of expulsion decisions will
operate differently according to the seriousness of the
reason. Minimum safeguards for the judicial review of
expulsion decisions will also be necessary;

( 1) See EESC opinion on the green paper.

— an agreed approach to situations where the legal residence
of a person comes to an end and they have to be regarded
as an illegal resident;

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— minimum standards for detention conditions for persons
awaiting expulsion. Identification of persons who should
not be detained, such as unaccompanied children, the
elderly, pregnant women, people with serious disabilities,
etc.;

these policies. The Commission and the Council should make
appropriate use of the various proposals. The EESC notes with
satisfaction that the communication has taken account of
several of the proposals contained in its opinion.

— standards for establishing proof of return, especially in

the case of voluntary return.

The communication advances the idea of ‘integrated
1.8.
return programmes’ aimed at encouraging voluntary return
and successful reintegration of returnees in their country of
origin. The communication refers to the development of
projects which involve advice to returnees, assistance with
travel, assistance with training and employment, assistance
with housing, etc. The Commission states that incentives to
encourage potential returnees to go back voluntarily should
be assessed and that sufficient financial assistance should be
available to put this into practice. The Commission calls for
consideration to be given to the possibility of a Community
financial instrument.

1.9.
The effectiveness of a return policy, particularly in the
case of forced return, is totally dependent on cooperation with
countries of origin and transit. These countries have to readmit
their own citizens, or persons transiting their territory, where
they have been apprehended in an illegal situation in a Member
State. The communication views cooperation with these
countries from the following angles:

— administrative cooperation, aimed at strengthening cer-
tain institutions in the countries of origin and developing
measures for the reintegration of returnees;

— readmission agreements are difficult to achieve unless
they contain specific benefits for the countries of origin
which conclude them; hence the Commission affirms the
need to define such incentives;

— cooperation with transit countries to persuade them to
admit persons who cannot return directly to their country
of origin.

1.10.
The Commission concludes its communication by
asking the Council to endorse the Return Action Programme
by the end of the year.

2.2.
In its opinion on the green paper, the EESC has already
given its views on most of the issues raised by the Commission.
It is not necessary to repeat them here. The present opinion
should be seen as supplementing its predecessor.

It must always be borne in mind that a person ‘without
2.3.
papers’
is not a person without rights and that an illegal
immigrant is not a criminal, although their situation may not
be legal. Express support is given to the emphasis placed in
point 1.2.3 of the communication on the need to observe
human rights standards, even in the case of persons ‘without
papers’. This includes in particular standards with regard to
social and economic rights.

2.4.
This communication, as already pointed out here,
refers almost exclusively to the return of illegal residents. The
EESC realises that it is necessary to build on what was laid
down at the Seville Council, but would wish, once again, to
draw attention to the need to speed up the legislative work so
that the EU has a common policy for economic immigrants
providing legal and transparent channels for immigration; the
same applies to common legislation on asylum.

2.5.
The EESC would remind the Commission that various
of its opinions have pointed to the need to take action on
regularisation. Forced return, as the Commission states, is a
necessary adjunct to immigration policy. The EESC considers
that expulsion and obligatory repatriation are extreme
measures.

2. General comments

The communication has been published in the wake of
2.1.
the debate around the green paper on this issue. The EESC
welcomes the participatory approach adopted for drawing up

2.6.
The Commission announces a forthcoming communi-
cation on immigration and development in which it will
analyse the way in which the return of residents to their
countries of origin can be beneficial to the development of
these countries. The EESC welcomes the announcement of this
communication, but would reiterate the need to ensure that
the forced return of illegal residents is also of benefit to the
development of countries of origin. This idea is broached in
point 2.4 on integrated return programmes, but in too general
terms.

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2.7.
In its opinion on the green paper, the EESC states that
voluntary return should be given priority and forced return
used only as a last resort. The Commission’s communication
also advocates favouring voluntary return, but this idea is not
adequately reflected in the actual proposals. The most extensive
section, and that which contains the most specific measures, is
that on cooperation between Member States in the organis-
ation of forced returns.

Another reason why the need for voluntary return
2.8.
must be highlighted is that (humanitarian) non-governmental
organisations will only become involved in return activities if
return is voluntary. The involvement of these organisations is
highly desirable and sometimes a precondition for the success
of return programmes. Accordingly, this matter should not be
dealt with solely between states.

2.9.
It is essential that any return policy be based on respect
for human rights and fundamental liberties. In its opinion on
the green paper the EESC already warned that Articles 3, 5, 6,
8 and 13 of the European Convention on Human Rights and
Articles 3, 4, 19, 24 and 47 of the Charter of Fundamental
Rights contain specific provisions which are applicable to a
return policy for illegal residents.

2.10.
Voluntary return is addressed mainly in the section
on integrated return programmes, but this section is much less
specific. The EESC would therefore call on the Commission to
flesh out its proposals for the organisation of voluntary return,
to its proposals on forced return. The EESC
in parallel
would support a Community financial
instrument for the
development of return programmes.

2.11.
It is necessary to ensure in all cases that forced return
procedures are carried out under effective judicial protection.
All persons against whom an expulsion order is issued should
have full access to judicial appeal, and the appeal should have
suspensive effect. The latter is essential given the nature of the
act of expulsion: if a judicial ruling goes in favour of the
person concerned, but is issued after they have already been
expelled, in most cases the outcome will not benefit them,
infringing their right to effective judicial protection.

3. Specific comments

3.2.
This is the case with the mutual recognition of return
decisions, aimed at ensuring that expulsion orders issued by
one Member State are executed by another (where the illegal
immigrant is apprehended in a different state from the one
which ordered their expulsion) without the need for a new
expulsion decision (1). The EESC considers that it would be
premature to apply this measure without unified standards
and criteria on the interpretation of the Geneva Convention
and on persons with a right to subsidiary protection. The
Commission recognises this in the communication (2). The
EESC would like to see a balance between the measures to
reduce illegal immigration and the measures needed to ensure
immigration takes place through legal channels.

3.3.
The right to family unity should clearly prevail over
expulsion on grounds of illegal residence. On this basis, the
EESC would reiterate what it said in its opinion on the green
paper: there should be no expulsion when it would involve
family separation.

3.4.
Regarding the coercive measures to be used when
someone physically opposes expulsion, the communication
states that such measures have their limits and that the physical
integrity of the returnee is of the utmost importance (3). The
EESC affirms that there should be no discussion on whether
the physical integrity of the returnee is of greater or lesser
importance; quite simply there must be nothing in the
expulsion procedure which threatens this physical integrity.
Unfortunately there have been many people whose only crime
was to come to Europe looking for work and a decent future,
but who have died during the expulsion proceedings because
of the brutal conduct of some officials.

The communication analyses the limits that should be
3.5.
set to the detention of persons awaiting expulsion, taking up
several of the proposals that the EESC put forward in its
opinion on the green paper as well as suggestions made by
various organisations at the conference organised by the
Commission on 16 July 2002. The EESC welcomes this,
but would reiterate one point raised in that opinion. The
communication states that returnees in detention should as far
as possible be separated from convicts (4). In the EESC’s view,
there should be a strict prohibition on returnees being held in
jails, since illegal
immigrants awaiting expulsion are not
criminals.

3.1. Without a common policy and legislation to channel
immigration legally and a common policy and legislation on
asylum, the application of some of the proposals put forward
in this communication is putting the cart before the horse. The
Commission realises this, but the Seville Council has decided
thus.

(1) Point 2.31 (1st para.) of the communication.
(2) Point 2.31 (2nd para.) of the communication.
(3) Point 2.32 (4th para.) of the communication.
(4) Point 2.35 (7th para.) of the communication.

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3.6.
The communication quite rightly stresses that the
principle of proportionality must apply to the detention of
persons awaiting expulsion. As a matter of principle, the
detention of such persons should not be used to coerce or
exert pressure on them (e.g. with a view to obtaining identity
papers).

3.7.
The EESC has already expressed its views on these
matters in its opinion on the green paper. It should be noted
that detention pending expulsion should not exceed 30 days.

To avoid serious problems for the persons concerned,
3.8.
it is crucial that the EU establish, on a temporary basis, a list

Brussels, 11 December 2002.

of countries to which people may not be deported on account
of
freedom, war or
humanitarian crisis.

the risk to their lives,

the lack of

3.9.
The Commission concludes its communication by
asking the Council to endorse the Return Action Programme
by the end of the year, in accordance with the mandate given
by the Seville European Council. The EESC would like the
Council and the Commission to reflect on the contradiction
and lack of balance between the delay in common legislation
for legal immigration and the adoption of such harsh measures
against illegal immigration as expulsion and obligatory repatri-
ation.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on ‘Economic governance in the EU’

(2003/C 85/16)

On 18 July 2002 the European Economic and Social Committee, acting under Rule 23(3) of its Rules of
Procedure, decided to draw up an opinion on ‘Economic governance in the EU’.

The Section for Economic and Monetary Union and Economic and Social Cohesion, which was
responsible for preparing the Committee’s work on the subject, adopted its opinion on 26 November
2002. The rapporteur was initially Ms Konitzer, followed by Ms Florio.

At its 395th plenary session (meeting of 12 December 2002), the Economic and Social Committee
adopted the following opinion by 69 vote to 13, with 16 abstentions.

1. Preliminary remarks

1.1.
The Single European Act (1986) and the Treaties of
Maastricht (1992) and Amsterdam (1997) have considerably
expanded EC/EU activities. That said, the European Union
remains suigeneris, without a government responsible for state
action in the classical sense. Drawing on the treaties and
a range of different agreements between the Community
institutions and the Member States, and with the involvement
of various bodies, organisations and also enterprises, a form of
governance has emerged that is specific to the Community.

‘At European level,

1.2.
the [European Economic and
Social] Committee is the institutional forum for consulting,
representing, informing and expressing the views of organised
civil society, thereby allowing the representatives of Member
States’ economic, social and civic organisations to be an
integral part of the policy-forming and decision-making pro-
cess at Community level. (1)’ The Committee is therefore, quite
involved in the debate about how to improve
naturally,
governance in the European Union, both in the context of the
constitutional Convention and with a view to the future

(1) Resolution addressed to the European Convention.