Opinion of the Committee of the Regions on the - Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals
Date: 2006-04-27
Institutions: European Committee of the Regions
Subjects: EU migration policy, foreign national, human rights, illegal migration, return migration

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calls upon the Commission to protect the work of
2.3.5
civil society organisations representing national minorities in
Croatia and to issue an annual report on respect for the rights
of national minorities,
focusing in particular on the use of
bilingualism (where provided for) in local and regional admi-
nistrations;

proposes that Croatia be allowed to participate as of
2.3.6
2007 in the Community action programme supporting bodies

Brussels, 27 April 2006.

working in the field of active European citizenship (civic
participation);

that

suggests

2.3.7
that
a representative of EU Member States' civil society be allowed
to participate as an observer in the Council for Civil Society
Development set up by the Croatian government.

Commission

request

the

The President

of the Committee of the Regions

Michel DELEBARRE

Opinion of the Committee of the Regions on the
— Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions – A Common Agenda for
Integration - Framework for the Integration of Third-Country Nationals in the European Union
— Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions - Migration and Develop-
ment: Some concrete orientations

— Proposal for a Directive of the European Parliament and of the Council on common standards

and procedures in Member States for returning illegally staying third-country nationals

(2006/C 206/06)

The Committee of the Regions,

HAVING REGARD TO the Communication from the Commission to the Council,
the European
Parliament, the European Economic and Social Committee and the Committee of the Regions - Migration
and Development: Some concrete orientations (COM(2005) 390 final) and the Communication from the
Commission to the Council, the European Parliament, the European Economic and Social Committee and
the Committee of the Regions - A Common Agenda for Integration - Framework for the Integration of
Third-Country Nationals in the European Union (COM(2005) 389 final);

HAVING REGARD TO the Proposal for a Directive of the European Parliament and of the Council on
common standards and procedures in Member States for returning illegally staying third-country nationals
(COM(2005) 391 final);

HAVING REGARD TO the decision of the European Commission of 1 September 2005 to consult it on
this subject, under the first paragraph of Article 265 of the Treaty establishing the European Community;

HAVING REGARD TO the decision of its President of 23 September 2005 to instruct the Commission
for External Relations (RELEX) to draw up an opinion on this subject;

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29.8.2006

HAVING REGARD TO Article 63 of the Treaty establishing the European Community;

HAVING REGARD TO EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for
the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons
Who Otherwise Need International Protection and the Content of the Protection Granted;

HAVING REGARD TO Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued
to third-country nationals who are victims of trafficking in human beings or who have been the subject
of an action to facilitate illegal immigration, who cooperate with the competent authorities;

HAVING REGARD TO Council Directive 2003/109/EC of 25 November 2003 concerning the status of
third-country nationals who are long-term residents;

HAVING REGARD TO its opinion on the Green Paper on an EU approach to managing economic
migration (CdR 82/2005 fin);

HAVING REGARD TO its opinion on the Communication from the Commission to the Council, the
European Parliament,
the Regions on
immigration, integration and employment (CdR 223/2003 fin), OJ C 109 of 30.4.2004, p 0046-0049;

the Economic and Social Committee and the Committee of

HAVING REGARD TO its draft opinion (CdR 51/2006 rev. 1) adopted on 2 March 2006 by the
Commission for Constitutional Affairs, European Governance and the Area of Freedom, Security and
Justice (rapporteur: Andreas Schieder (AT/PES));

adopted the following opinion at its 64th plenary session, held on 26 and 27 April 2006 (meeting
of 27 April):

I. COMMUNICATION FROM THE COMMISSION TO THE
COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN
ECONOMIC AND SOCIAL COMMITTEE AND THE COMMIT-
TEE OF THE REGIONS – A COMMON AGENDA FOR INTE-
GRATION - FRAMEWORK FOR THE INTEGRATION OF
THIRD-COUNTRY NATIONALS IN THE EUROPEAN UNION
COM(2005) 389 FINAL.

1. Views of the Committee of the Regions

The Committee of the Regions

1.1 welcomes the fact that the Commission is responding
to the call
for proposals for
a coherent European framework for the integration of third-
country nationals;

from the European Council

1.2
notes that in its initial response the Commission con-
centrates primarily on proposals for specific measures for the
consistent application of
the Common Basic Principles for
Integration and on the EU support mechanisms (new possibi-
lities for action at EU and Member State levels, new ways of
guaranteeing coherence between EU and Member State mea-
sures);

1.3
acknowledges that the Communication's tables of sam-
ple measures at both national and EU level are based on the
Integration (adopted by the
Common Basic Principles

for

European Council in November 2004) and on the integration
handbook, the preparatory measures for INTI and the prepara-
tions for establishing a European Integration Fund;

notes with regret that the Commission does not say
1.4
which proposals are to be prioritised, but wishes this to be
done by the Member States themselves;

1.5 welcomes the Commission's view of
a two-way process;

integration as

considers it

that measures be taken to
1.6
important
strengthen the adaptability of
the host country population
(raising of intercultural awareness and knowledge, acceptance
of migration) and that reinforcement be given to the role of
private organisations in diversity management and to coopera-
tion with the media (promoting a voluntary code of conduct);

1.7 welcomes the fact that respect for the basic values of
the EU should underpin integration. Here the primary focus
needs to be on the citizenship element of
induction pro-
grammes;

1.8 welcomes the Commission's focus on education and
reiterates the need to implement specific instruments and
measures
in the field of education so that migrants can
integrate fully into the education system of the host country
and consequently into society as a whole;

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involvement of

stresses that employment must be viewed as a key
1.9
component of the integration process. The following are parti-
cularly important: innovative ideas for avoiding discrimination,
recognition of education and professional experience (by set-
ting up common procedures for this recognition in all Member
the social partners in the measures,
States),
help to enhance the training capacities of small companies,
professional organisations and trade unions, and positive mea-
sures to promote recruitment of migrants. The Committee
emphasises that uniform, clear and non-discriminatory criteria
the EU for assessing the
should be established throughout
education systems of individual countries and the professional
experience of citizens from EU Member States;

integration. This makes it a potentially valuable starting point
for aligning integration policies in the Member States;

stresses that clear goals must be formulated. Indica-
1.18
tors and evaluation mechanisms should be used to monitor
these so that measures can be adjusted, progress in integration
assessed and information flows more efficiently configured;

1.19
attaches particular importance to cooperation and
information exchange (national contact points for integration –
NCPI,
the integration handbook, website on the integration
issue).

1.10
stresses that integration is a dynamic, two-way pro-
cess of mutual accommodation. Welcoming initiatives and
offers of help are important confidence-building measures in
this respect;

2. The Committee of the Regions’ recommendations

stresses the importance of making both migrants

1.11
and the resident population aware of the EU's basic values;

The Committee of the Regions

stresses that promoting access to the labour market
1.12
and education opportunities, and recognising qualifications and
professional experience, are important elements of the integra-
tion process;

2.1
stresses that while national circumstances and tradi-
tions may dictate the choice, manner and means of application,
the proposals are nevertheless considered core elements of the
Member States' integration policies;

1.13 welcomes the proposed support for strengthening the
capacity of public and private service providers to interact with
intercultural skills,
third-country nationals (translation service,
integration and diversity management, mentor programmes);

agrees that frequent encounters between migrants and
1.14
residents, common forums, intercultural dialogue,
information
about migrants and their culture, and integration-friendly living
conditions in cities should be reinforced;

notes that

1.15
the EU Charter of Fundamental Rights
guarantees respect for cultural diversity and the right to free-
dom of belief, save where it conflicts with other inviolable EU
laws, the Universal Declaration of Human Rights or national
law;

1.16
stresses the importance of migrants participating in
the democratic process and in formulating integration policy
measures, particularly at local level;

points out that the gender aspect and the situation of
families should

2.2
young migrants and children from migrant
receive particular attention;

2.3
recommends that a basic knowledge of the language,
history and institutions of the host community be considered
a prerequisite for integration;

calls for efforts to be made in the education system to
2.4
equip migrants for more successful and active participation in
society. For example, there should be a diversity dimension to
school curricula and particular support in education for young
migrants. The importance of pre-school education should also
be highlighted and projects set up to ease the transition from
school to work, and tailored programmes should therefore be
promoted in the Member States;

stresses that in addition to the need to ‘address[ing]
2.5
effectively migrant youth delinquency’, as
the Commission
states, there is also a need to promote effective prevention
and information policies upstream of the process;

1.17 welcomes the comprehensive nature of the catalogue
of sample measures and its inclusion of all important facets of

2.6
underlines the fact that equal access for migrants to
public and private goods and services, without discrimination,
should be promoted as crucial prerequisites for integration;

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stresses that acceptance of other ways of life and views
2.7
has a limit that may not be crossed,
i.e. respect for human
rights and the fight against all types of discrimination, particu-
larly on the grounds of gender, as protected by EU and
law. Women should receive special protection
international
to
and be guaranteed equal opportunities and full access
employment, training, and the political life of European demo-
cratic society. Their free will should also be protected, avoiding
forced marriages, combating domestic violence, guaranteeing
their
sexual and reproductive rights, prohibiting degrading
practices such as female genital mutilation, etc. Human rights
are non-negotiable, and flouting them cannot be justified on
any traditional and/or cultural grounds. Specific measures
should therefore be devised and implemented to inform, pre-
vent, support and raise awareness,
in order to combat all
discriminatory and/or degrading practices and thus move to-
wards achieving equal opportunities for both male and female
migrants;

highlights the Communication's lack of binding mea-
2.8
sures and analytical focus. This gives the general
impression
that ‘soft measures’ (such as dialogue, forums and information
provision) lie at the heart of the Communication; the impor-
tance of these measures should not be underestimated. Those
that are structurally important
for integration, such as the
political
involvement of migrants (Principle 9), appear only
peripheral;

calls for clear differentiation and classification according
2.9
legal, structural and institutional responsibilities
to political,
and players in the host society and according to the impor-
tance of
the Common Basic
Principles should also be further elaborated to make them
a stronger instrument;

the measures. To this end,

future integration handbooks. The annual report on migration
and integration should be continued and developed further;

points out

that many of

2.14
the promised measures
(welcoming initiatives, offers of help, raising host community
awareness, offers of training, etc.) are to be delivered by local
bodies. It is crucial, therefore, that these be given the necessary
resources. The same is true at regional level (establishment of
information instruments,
induction and cultural programmes,
etc.);

2.15
funded so that they can implement integration measures;

calls for municipalities and regions to be adequately

2.16
proposes setting up a database (e.g. with information
on the recognition of education and qualifications and on the
needs of migrants);

2.17
points out that the regional and local levels perform
a major and indispensable role in integration and can con-
tribute comprehensive knowledge and know-how. They should
therefore be heavily involved at a very early stage in develop-
ing strategies and in the whole process;

2.18
calls for measures and incentives enabling migrants
themselves to make use of the ideas proposed (e.g. job-seeking
and training incentives).

2.19
stresses the need to improve the methods for calcu-
lating the number of migrants in order to be able to adjust
and develop the integration measures to be implemented.

2.10
level. The legal framework for admission and stay,
rights and obligations, should be consolidated;

recommends steps for a coherent approach at EU
including

II. COMMUNICATION FROM THE COMMISSION TO THE
COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN
ECONOMIC AND SOCIAL COMMITTEE AND THE COMMIT-
TEE OF THE REGIONS - MIGRATION AND DEVELOPMENT:
SOME CONCRETE ORIENTATIONS (COM(2005) 390 FINAL)

2.11
as a matter of concern, and the language should reflect this;

notes that the Communication raises the gender issue

1. Views of the Committee of the Regions

2.12
calls for every future migration instrument forming
part of the legal framework for admission and stay to provide
for equal treatment and rights for female migrants;

(consultation,

2.13
underscores the importance, particularly on the parti-
cipation front, of interest group involvement and the idea of
establishing a European integration forum of EU umbrella
recommendations, close contact
organisations
with National Contact Points for Integration – NCPI). The
European Parliament (EP), the European Economic and Social
Committee (EESC) and the Committee of the Regions (CoR)
should be invited to take part. The European Integration
Forum should be involved in the preparatory conference for

The Committee of the Regions

1.1
notes that the Communication contains steps for im-
proving the effect of migration on development. The basis for
this is the Communication of December 2002 and the focus is
on south-north migration;

1.2
notes that, together with the effect of emigration on
the development of the countries of origin, it is also important
to study the effects of development cooperation on emigration,
as it is a basic aspect of this. Only by helping the countries of
origin of migration to provide sufficient opportunities for their
it be possible to control migratory flows in the
citizens will
long term;

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notes that

the Communication sets great

store by
1.3
supporting temporary and virtual return as a way of transfer-
ring knowledge and experience to the benefit of home coun-
tries and their development (brain-circulation instead of brain-
drain);

1.4 welcomes the particular importance attached to inte-
grating migration policy into development policy, employing
returning migrants in development, facilitating capital transfers
and remittances, and co-financing projects founded on remit-
tances;

1.5
approves of the Communication's intention generally
to support the maintenance of contacts between countries of
origin and migrants. (This element plays an even greater part
in the citizenship policies of the individual Member States.);

stresses the importance of greater emphasis on mi-
1.6
grants as bridge-builders to their countries of origin. This
approach should serve as an argument for additional training
in the language of
the host country, along with additional
literacy training and classes given in the mother tongue;

notes that the Green Paper on legal

1.7
immigration, for
example, makes it clear that the emphasis will be on promot-
ing temporary jobs and immigration of highly qualified work-
ers.

2. Recommendations of the Committee of the Regions

The Committee of the Regions

2.1
notes that money flows can only help to achieve
development goals. They are of a purely private nature and
hence cannot replace state development aid;

2.4 welcomes the envisaged support for developing coun-
tries in identifying and building up contacts with their dia-
sporas. Databases should be created to provide governments in
the countries of origin with information they need to draw on
the highest-skilled people in their diasporas. Should the need
arise, these people can be invited to return. However, it should
be made clear that diaspora information can only be registered
in databases on a voluntary basis;

recognises that short-term migration is intended to
It should not,

2.5
improve capacity in the country of origin.
however, serve as the general model for seasonal workers;

2.6
stresses that the return migration and short-term or
virtual return referred to are impossible under the law as it
stands (Council Directive 2003/109/EC of 25 November 2003
concerning the status of third-country nationals who are long-
term residents), since even migrants with an unrestricted right
to settle forfeit this status when they are absent from the host
country for a relatively long period of time. To be welcomed is
the fact that the Communication announces that the Commis-
sion will explore how third-country nationals do not forfeit
their right to residence although they might return to their
country of origin for a while as part of a return programme;

proposes drawing up common legislation that would
2.7
enable migrants with the unrestricted right to settle to travel to
their country of origin for as long as they wish, without
consequently forfeiting their status as third-country nationals
who are long-term residents, or their right to settle;

stresses that the charges and conditions of transfer are
2.2
unsatisfactory. Measures are required to cut charges,
increase
safety and speed up transactions. While these are achievable in
the short term, the impact on development should be viewed
as a longer-term goal;

recognises that the Communication reflects the grow-
2.8
ing discussion in Europe about the role of migrants in pro-
(remittances, knowledge transfer, etc.).
moting development
temporary migration is beneficial –
Seen in these terms,
though first of all measures should be explored which are
based on voluntary return or a system of incentives;

2.3

proposes that the following measures be provided for:

— promoting cheaper, quicker and safer remittance transfers;

calls, therefore, for a rethink in this context of what

2.9
transnationality should mean for integration policy;

— better data;

— transparency;

— legal framework;

— technical framework;

— access to financial services.

2.10
commends the Communication's adoption of a novel
perspective which casts the country of origin as a stakeholder
in migration management. However,
this positive aspect of
temporary migration and temporary return would require an
unconditional right of return for long-term or longer-term
migrants
contradiction with Council Directive
2003/109/EC of 25 November 2003 concerning the status of
third-country nationals who are long-term residents, under
to
which migrants automatically forfeit
stay if absent from the territory of the Community);

their acquired right

(in direct

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2.11 welcomes the Communication's emphasis on encoura-
ging temporary migration provided it is voluntary and based
on a system of
incentives. Temporary migration can be
a useful instrument in developing 3rd world countries;

tribute comprehensive knowledge and know-how. They should
therefore be heavily involved at a very early stage in develop-
ing strategies and in the whole process.

believes that

2.12
temporary migration can only work
effectively if migrants are allowed re-entry into the host
country after a temporary return to their country of origin.
Therefore, calls on the Member States which currently prevent
multiple entries to reconsider the ban;

2.13
recognises that seasonal employment is a short-term
benefit for those concerned, since they have the chance to earn
money and gain professional experience for a brief period.
they return to their countries of origin without
However,
hope of
improving their economic and social situation. We
think that a longer-term perspective is preferable;

2.14 welcomes the support
for return programmes, but
these can only work under an effective development policy
that includes strengthening of coordinated action under decen-
tralised cooperation;

III. PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PAR-
LIAMENT AND OF THE COUNCIL ON COMMON STAN-
DARDS AND PROCEDURES IN MEMBER STATES FOR RE-
TURNING ILLEGALLY STAYING THIRD-COUNTRY NA-
TIONALS COM(2005) 391 FINAL

1. Views of the Committee of the Regions

The Committee of the Regions

stresses

is
effective
1.1
a necessary component of a well-conceived and credible migra-
tion policy;

repatriation policy

that

an

points out that the Directive is intended to guarantee

1.2
a fair and transparent procedure;

calls, therefore, for sufficient investment in infrastruc-
2.15
ture and education measures and monitoring resource use on
the ground;

notes that the principle of voluntary return (incentives)
1.3
is to be implemented through a harmonised two-step proce-
dure (return decision – issue and enforcement of a removal
order);

recommends that seasonal

2.16
are potentially more at
against such risk through appropriate measures;

immigrant workers, who
risk of exploitation, be protected

2.17
sees that, although there are focused and forward-
looking approaches in the Communication's proposals, work
is needed to find a solution to the discrepancies referred to
above;

1.4 welcomes the creation of EU-wide re-entry bans, as
this also provides the basis for a common data system (SIS II).

2. The Committee of the Regions’ recommendations

The Committee of the Regions

2.18
lowed to gain the upper hand in the EU;

stresses that restrictive approaches must not be al-

2.1
recommends that the principles of the rule of law and
the right to fair trial should not be sacrificed to xenophobia
and a focus on purely economic considerations;

2.19
stresses the need to avert a scenario in which exten-
sive measures for forced return are legitimised on the grounds
of promoting development without a system of broad legal
immigration opportunities for all levels of qualification (see the
Proposal for a Directive of the European Parliament and of the
Council on common standards and procedures in Member
States for returning illegally staying third-country nationals,
COM(2005) 391 final);

2.2
stresses that when introducing minimum procedural
safeguards particular attention should be paid to the propor-
tionality of coercive measures. As migrants often face harsh
punishment on return to their home countries, the necessary
measures should be adopted in order
to safeguard human
rights, giving absolute priority to protecting them when there
is a risk of their being returned;

2.20
stresses that it is crucial to assist the development of
migrants' countries of origin, promoting cooperation with
them in all areas through agreements and specific programmes;

2.3
regrets that no thought has been given to special
standards of protection for women, girls and minors, and for
people with disabilities;

levels perform
2.21
a major and indispensable role in integration and can con-

the regional and local

stresses that

2.4
calls for EU protection to be extended to victims and
witnesses of human trafficking and other migration-related
crimes;

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points out that human rights as enshrined in Commu-
2.5
nity law (above all the European Convention for the Protection
of Human Rights and Fundamental Freedoms, and the Charter
of Fundamental Rights of the European Union) should serve as
the basis for future standards. The express and binding refer-
ence to specific articles of the Convention and of the Charter
is intended to ensure that this is respected in the implementa-
tion of the Directive by Member States. Loose phrasing (‘take
due account’,
‘in accordance with’) could be interpreted as
allowing undue latitude;

urges that simply staying illegally in the territory of
2.6
a Member State should not be considered compelling proof of
a risk of absconding. To do so would amount to an unaccep-
table pre-judgement infringing Art. 6 of the European Conven-
tion for the Protection of Human Rights and Fundamental
Freedoms (right to a fair hearing);

underlines the importance of protecting victims and
2.7
witnesses of human trafficking. Victims and witnesses of hu-
man trafficking should not be treated merely as tools for
securing convictions. Instead, prior to any return, consideration
should be given to the situation in the home country to avoid
encouraging coercion and menace on the part of criminals;

for this financial support cannot be seriously predicted while
a procedure is ongoing. Hence,
lack of means
should be the decisive factor in granting legal aid;

the fact of

2.10
calls for coercive measures (temporary custody) to be
proportional, as migrants often face harsh punishment on
return to their home countries. Some people tend to behave
therefore, be ne-
desperately, but human rights must not,
glected;

2.11
antee appropriate medical care during temporary custody;

notes that Member States should be obliged to guar-

calls for full

implementation of

the Convention on
2.12
the Rights of
the Child of 20 November 1989. Particular
emphasis should be accorded to the following rights: freedom
of thought, conscience and religion; protection of private life;
protection from the use of violence, mistreatment and neglect;
the right to health care; the right to education, schooling and
training; and protection of minorities;

2.8 wishes the passage regarding a ‘threat to public policy
or public security’,
justifying imposition of a re-entry ban, to
refer only to exceptionally serious trespasses against the vital
interests of Member States. Conduct that has only a minor
impact on public welfare, such as unjustified illegal stay, should
not incur this sanction;

stresses that

2.13
the Directive functions
to ensure that
properly, the serving of orders of other Member States in the
territory of the individual Member States must be recognised
and allowed. This should be achieved by concluding bilateral
or multilateral agreements, which should also provide for the
necessary cooperation between authorities;

2.9
recommends that people without sufficient resources
be granted legal aid without any needs assessment. The need

favours the establishment of a central IT system for
2.14
storing personal data. The authorities of the individual Member
States should have access to this system and be required to
submit the necessary data.

Recommendation 1

Article 5

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 5

Amendment

Article 5

Family relationships and best interest of the child

Family relationships and best interest of the child

When implementing this Directive, Member States shall
take due account of the nature and solidity of the third
country national's family relationships, the duration of his
stay in the Member State and of the existence of family,
cultural and social ties with his country of origin. They
shall also take account of the best interests of the child in
accordance with the 1989 United Nations Convention on
the Rights of the Child.

the nature and solidity of

When implementing this Directive, Member States shall
the third
take account of
country national's family relationships under Article 8 of
the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the duration of his
stay in the Member State and of the existence of family,
cultural and social ties with his country of origin. They
shall also respect take account of the best interests of the
child in accordance with the 1989 United Nations Con-
vention on the Rights of the Child.

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Re a so n

It is a particular concern of the Committee of the Regions that human rights as enshrined in Community
law (above all the European Convention for the Protection of Human Rights and Fundamental Freedoms)
is intended to serve as the basis for future standards. The express and binding reference to specific articles
of the Convention ensures that this is respected in the implementation of the Directive by Member States.
Loose phrasing (‘take due account’, ‘in accordance with’) could be interpreted as allowing undue latitude.

Recommendation 2

Article 6.2

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 6

Return decision

return decision shall provide for an appropriate
The
period for voluntary departure of up to four weeks,
unless there are reasons to believe that the person con-
cerned might abscond during such a period. Certain
obligations aimed at avoiding the risk of absconding,
such as regular reporting to the authorities, deposit of
a financial guarantee, submission of documents or the
obligation to stay at a certain place may be imposed for
the duration of that period.

Amendment

Article 6

Return decision

return decision shall provide for an appropriate
The
period for voluntary departure of up to four weeks,
unless there are reasons to believe that the person con-
cerned might abscond during such a period. Certain
obligations aimed at avoiding the risk of absconding,
such as regular reporting to the authorities, deposit of
a financial guarantee, submission of documents or the
obligation to stay at a certain place may be imposed for
the duration of that period.

Risk of absconding shall not be assumed merely
is staying

2a)
on the grounds that a third-country national
unlawfully in the territory of a Member State.

Re a so n

The proposed addition makes it clear that that simply staying illegally on the territory of a Member State
should not of itself be considered compelling proof of a risk of absconding. To do so would amount to
an unacceptable pre-judgement infringing Art. 6 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (right to a fair hearing).

Recommendation 3

Article 6.5

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 6

Return decision

Amendment

Article 6

Return decision

Member
States may, at any moment decide to grant an
autonomous residence permit or another authorisation
offering a right to stay for compassionate, humanitarian
or other
staying
illegally on their territory. In this event no return decision
shall be issued or where a return decision has already
been issued, it shall be withdrawn.

to a third-country national

reasons

Member
States may, at any moment decide to grant an
autonomous residence permit or another authorisation
offering a right to stay for compassionate, humanitarian
or other
staying
illegally on their territory. In this event no return decision
shall be issued or where a return decision has already
been issued, it shall be withdrawn.

to a third-country national

reasons

The Member States shall protect victims and wit-
5a)
nesses of human trafficking.
In such cases, no return
decision shall be issued – and any decision already issued
shall be revoked - until it is ascertained that the victims
and witnesses of human trafficking can be returned to
a third country which is safe for them. In order to enable
Member States properly to implement measures to defend
the rights of migrants, the European Union should decide
on various mechanisms for
financial
assistance.

the provision of

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Re a so n

The Committee of the Regions wishes to highlight the importance of protecting these persecuted groups
of people. Victims and witnesses of human trafficking should not be treated merely as tools for securing
convictions. Instead, prior to any return, consideration should be given to the situation in the home
country to avoid encouraging coercion and menace on the part of criminals.

is not
The EU should be jointly responsible in all policies against illegal migration which, at present,
a problem of individual countries but a challenge for the EU as a whole. The Financial Perspectives of the
EU for 2007-213 provide for financial assistance mechanisms under the programme for the Area of
Freedom, Security and Justice. Certain aspects of this programme are devoted to migration and integration
policies and could be used, in part, for these purposes.

Recommendation 4

Article 8.2

Text proposed by the European Commission COM(2005) 391
final – 2005/0167 (COD)

Amendment

Article 8

Postponement

Article 8

Postponement

1. Member States may postpone the enforcement of
a return decision for an appropriate period, taking into
account the specific circumstances of the individual case.

1. Member States may postpone the enforcement of
a return decision for an appropriate period, taking into
account the specific circumstances of the individual case.

2. Member States
shall postpone the execution of
a removal order in the following circumstances, for as
long as those circumstances prevail:

2. Member States
a removal order in the following circumstances,
long as those circumstances prevail:

shall postpone the execution of
for as

a) inability of the third-country national to travel or to
be transported to the country of return due to his or
her physical state or mental capacity;

a) inability of the third-country national to travel or to
be transported to the country of return due to his or
her physical state or mental capacity;

b) technical reasons, such as lack of transport capacity or
other difficulties making it impossible to enforce the
in a humane manner and with full respect
removal
for
rights
and dignity;

the third-country national’s fundamental

b) technical reasons, such as lack of transport capacity or
other difficulties making it impossible to enforce the
removal in a humane manner and with full respect for
the third-country national’s fundamental rights and
dignity;

c) lack of assurance that unaccompanied minors can be
handed over at the point of departure or upon arrival
to a family member, an equivalent
representative,
a guardian of the minor or a competent official of
the country of return, following an assessment of the
conditions to which the minor will be returned.

c) lack of assurance that unaccompanied minors can be
handed over at the point of departure or upon arrival
to a family member, an equivalent
representative,
a guardian of the minor or a competent official of
the country of return, following an assessment of the
conditions to which the minor will be returned.

3.
If enforcement of a return decision or execution of
a removal order is postponed as provided for in para-
graphs 1 and 2, certain obligations may be imposed on
the third country national concerned, with a view to
avoiding the risk of absconding, such as regular reporting
to the authorities, deposit of a financial guarantee, sub-
mission of documents or
the obligation to stay at
a certain place.

2 a)
In any event the Member States must postpone
enforcement of a decision to return an unaccompanied
minor until it can be ensured that he can be handed over
the point of departure or upon arrival to a family
at
member, an equivalent representative, a guardian of the
minor or a competent official of the country of return,
following an assessment of the best interest of the minor
and of the conditions to which he will be returned.

If enforcement of a return decision or execution of
3.
a removal order is postponed as provided for in para-
graphs 1 and 2, certain obligations may be imposed on
the third country national concerned, with a view to
avoiding the risk of absconding, such as regular reporting
to the authorities, deposit of a financial guarantee, sub-
mission of documents or
the obligation to stay at
a certain place.

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Re a so n

It would be a grave mistake, and at odds with all international conventions on the protection of human
in particular the New York Convention on the Rights of the Child, to allow Member States to
rights,
return minors without
in
assessing the best interest of the minor, which must be the basic criterion informing all decisions relating
to minors.

first ensuring the above checks had been made;

these checks are crucial

Recommendation 5

Article 9.3

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 9.3

Re-entry ban

Amendment

Article 9.3

Re-entry ban

re-entry ban may be withdrawn,

The
cases in which the third-country national concerned:

in particular in

(a) is the subject of a return decision or a removal order

for the first time;

(b) has reported back to a consular post of a Member

State;

(c) has reimbursed all costs of his previous return pro-

re-entry ban may be withdrawn at any time.,

in
The
particular in cases in which the third-country national
concerned:

(a) is the subject of a return decision or a removal order

for the first time;

(b) has reported back to a consular post of a Member

State;

cedure.

(c) has reimbursed all costs of his previous return pro-

cedure.

Re a so n

The proposed amendment makes the provision clearer. Specifically, explicitly linking (indent c)
the
withdrawal of a re-entry ban to reimbursement of costs of a previous return procedure could lead to
unwarranted discrimination in favour of the wealthy or even of rich gangs of traffickers. We think the
case still has to be made for the requirement of reporting back to a consular post.

Recommendation 6

Article 12.3

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 12

Judicial remedies

Amendment

Article 12

Judicial remedies

3. Member States shall ensure that the third-country
national concerned has the possibility to obtain legal
advice,
linguistic
representation and, where necessary,
assistance. Legal aid shall be made available to those
who lack sufficient
such aid is
necessary to ensure effective access to justice.

insofar as

resources

3. Member States shall ensure that the third-country
national concerned has the possibility to obtain legal
advice,
linguistic
representation and, where necessary,
assistance. Legal aid shall be made available to those
who lack sufficient
such aid is
necessary to ensure effective access to justice

insofar as

resources

Re a so n

The Committee of the Regions recommends that people without sufficient resources be granted legal aid
without any needs assessment. The need for this financial support cannot be seriously predicted while
a procedure is ongoing. Hence, the fact of lack of means should be the decisive factor in granting legal
aid.

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Recommendation 7

Article 14.1

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Amendment

Article 14

Temporary custody

Article 14

Temporary custody

1. Where there are serious grounds to believe that
there is a risk of absconding and where it would not be
sufficient to apply less coercive measures, such as regular
reporting to the authorities,
the deposit of a financial
guarantee, the handing over of documents, an obligation
to stay at a designated place or other measures to prevent
that
temporary
custody a third-country national, who is or will be
subject of a removal order or a return decision,

risk, Member States shall keep under

1. Where there are serious grounds to believe that
there is a risk of absconding and where it would not be
sufficient to apply less coercive measures, such as regular
reporting to the authorities,
the deposit of a financial
guarantee, the handing over of documents, an obligation
to stay at a designated place or other measures to prevent
that
temporary
custody a third-country national, who is or will be
subject of a removal order or a return decision,. Article
6(2a) shall apply in this case.

risk, Member States shall keep under

Re a so n

The proposed amendment makes it clear that simply staying illegally on the territory of a Member State
should not be considered compelling proof of a risk of absconding. To do so would amount to an
unacceptable pre-judgement infringing Art. 6 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (right to a fair hearing).

Recommendation 8

Article 15.1

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 15

Amendment

Article 15

Conditions of temporary custody

Conditions of temporary custody

1. Member States shall ensure that third-country na-
tionals under temporary custody are treated in a humane
and dignified manner with respect for their fundamental
rights and in compliance with international and national
law. Upon request they shall be allowed without delay to
establish contact with legal representatives, family mem-
bers and competent consular authorities as well as with
relevant
international and non-governmental organisa-
tions.

1. Member States shall ensure that third-country na-
tionals under temporary custody are treated in a humane
and dignified manner with respect for in accordance with
Article 3 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms their funda-
mental rights and in compliance with international and
national
law. Particular attention shall be paid to the
proportionality of coercive measures. Upon request they
shall be allowed without delay to establish contact with
legal representatives, family members and competent con-
sular authorities as well as with relevant international and
non-governmental organisations.

Re a so n

The purpose of
the
European Convention for the Protection of Human Rights and Fundamental Freedoms not to subject
anyone to torture or an inhuman or degrading punishment or treatment.

is to make clearer the obligation under Article 3 of

the proposed amendment

The Committee of the Regions lays particular stress on the requirement of proportionality, since migrants
often face harsh punishment on return to their home countries. Some people tend to behave desperately,
but this must not lead to the neglect of human rights.

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Recommendation 9

Article 15.2

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 15

Amendment

Article 15

Conditions of temporary custody

Conditions of temporary custody

Temporary custody shall be carried out in specia-
2.
lised temporary custody facilities. Where a Member State
cannot provide accommodation in a specialised tempor-
ary custody facility and has to resort to prison accom-
modation,
third-country nationals
under temporary custody are permanently physically se-
parated from ordinary prisoners.

it shall ensure that

Particular attention shall be paid to the situation of
vulnerable persons. Member States shall ensure that min-
ors are not kept in temporary custody in common prison
accommodation. Unaccompanied minors shall be sepa-
rated from adults unless it is considered in the child's
best interest not to do so.

Temporary custody shall be carried out in specia-
2.
lised temporary custody facilities. Where a Member State
cannot provide accommodation in a specialised tempor-
ary custody facility and has to resort to prison accom-
modation,
third-country nationals
under temporary custody are permanently physically se-
parated from ordinary prisoners. Appropriate medical care
shall be guaranteed in the case of physical and psycholo-
gical problems. Particular attention shall be paid to the
care of traumatised people.

shall ensure that

it

Particular attention shall be paid to the specific needs of
women. They shall always be held in separate areas from
men during temporary custody.

3. Particular attention shall be paid to the situation of
vulnerable persons. Member States shall ensure respect for
the Convention of the Rights of the Child of 20 Novem-
ber 1989. In particular, Member States shall ensure that
minors are not kept in temporary custody in common
prison accommodation. Unaccompanied minors shall be
separated from adults unless it is considered in the child's
best interest not to do so.

Re a so n

The intention is to make clear the obligation of the Member States to guarantee appropriate medical care
during temporary custody.

The rights of women and girls should be expressly stipulated.

the Rights of

the Child of 20 November 1989 should be implemented in full.
The Convention of
thought, conscience and
Particular emphasis should be accorded to the following rights:
religion; protection of private life; protection from the use of violence, mistreatment and neglect; the right
to health care; the right to education, schooling and training; and protection of minorities.

freedom of

Recommendation 10

Article 11.1

Text proposed by the Commission COM(2005) 391 final
- 2005/0167 (COD)

Article 11

Form

Amendment

Article 11

Form

Return decisions and removal orders shall be issued

1.
in writing.

Return decisions and removal orders shall be issued

1.
in writing.

Member States shall ensure that the reasons in fact and in
law are stated in the decision and/or order and that the
third-country national concerned is informed about the
available legal remedies in writing.

Member States shall ensure that the reasons in fact and in
law are stated in the decision and/or order and that the
third-country national concerned is informed about the
available legal remedies in writing.

1a. Member States shall recognise and allow the ser-
ving of official documents and decisions of other Member
States as part of the above procedure.

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Re a so n

To ensure that the Directive functions properly, the serving of orders of other Member States on the
territory of the individual Member States must be recognised and allowed. This should be achieved by
concluding bilateral or multilateral agreements, which should also provide for the necessary cooperation
between authorities.

Recommendation 11

New Article 16a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on common standards and procedures in Member States for returning illegally staying third-country
nationals

At present, the above document consists of Chapters I to VI.

The Committee of the Regions favours adding a Chapter Va as follows:

Brussels
COM(2005) 391 final

Chapter Va
CENTRAL IT SYSTEM

Article 16a

Central IT system for storing personal data

Using a central

1.
the Members States shall store and update
procedurally relevant personal data on illegally staying third-country nationals who have been, or are to
be, repatriated by individual Member States.

IT system provided by the EU,

The authorities of the Member States shall have access to this system and shall be required to submit

2.
the data mentioned in Article 1.

Brussels, 27 April 2006.

The President

of the Committee of the Regions

Michel DELEBARRE