The European Return Fund : Added Value and Vulnerabilities

IP/C/LIBE/FWC/2005-22

Immigration and Integration

DG Internal Policies of the Union, Directorate C – Citizens’ rights and Constitutional Affairs.

BRIEFING PAPER II :ORDER FORM No IP/C/LIBE/OF/2005-167.

THE EUROPEAN RETURN FUND :

ADDED VALUE AND VULNERABILITIES

By

Sergio Carrera & Nicoletta Pusterla

Date of Submission : 31 January 2006

TABLE OF CONTENTS

Executive Summary ii

Introduction 1

1. The European Return Fund : What is the Added Value ? 1

2. The Legal Vulnerabilities of the ERF 2

2.1 Human Rights Guarantees 2

2.2 The Legal Basis 3

2.3 Lack of Common Definitions 4

2.4 The Target Group 4

3. Practical Vulnerabilities of the ERF 5

3.1 The Responsible Authority 5

3.2 The Funding Allocated and its Implementation 5

4. Policy Recommendations 6

4.1 Solidarity and Compliance with Human Rights 6

4.2 Coherency 6

4.3 Efficiency 7

EXECUTIVE SUMMARY

This briefing paper analyses the added value of European-level financing of an EU return policy and the creation of the European Return Fund (ERF). It also assesses the legal and practical vulnerabilities involved in the ERF, and presents a set of recommendations aimed at policy optimisation. As we will argue, while the ERF could lead to more uniform practices among Member States and to an improvement in quality standards on « return », there are however a series of vulnerabilities of a juridical and practical nature which need to be carefully assessed and openly debated. First, in addition to some concerns about the legal basis and definitions provided in the European Commission’s proposal, it appears that the implementation of a ERF will not offer sufficient human rights guarantees in order to ensure a « secure juridical status » for the individual (legal vulnerabilities). Second, there are a number of critical elements in the funding allocation and its implementation, as well as in the definition of the responsible authorities (practical vulnerabilities).

THE EUROPEAN RETURN FUND :

ADDED VALUE AND VULNERABILITIES

Sergio Carrera and Nicoletta Pusterla [1]

INTRODUCTION

This briefing paper analyses the added value of European-level financing of an EU return policy and the creation of the European Return Fund (ERF). It also assesses the legal and practical vulnerabilities involved in the ERF, and presents a set of recommendations aimed at policy optimisation. As we will argue, while the ERF could lead to more uniform practices among Member States and to an improvement in quality standards on « return », there are however a series of vulnerabilities of a juridical and practical nature which need to be carefully assessed and openly debated. First, in addition to some concerns about the legal basis and definitions provided in the European Commission’s proposal, it appears that the implementation of a ERF will not offer sufficient human rights guarantees in order to ensure a « secure juridical status » for the individual (legal vulnerabilities). Second, there are a number of critical elements in the funding allocation and its implementation, as well as in the definition of the responsible authorities (practical vulnerabilities).

1. THE EUROPEAN RETURN FUND : WHAT IS THE ADDED VALUE ?

A « common return policy of irregular migrants » has been conceived as an essential ingredient of a common immigration policy in the EU agenda. In the last multi-annual programme setting up the objectives for the development of an « Area of Freedom, Security and Justice » for the next five years – The Hague Programme [2] – the European Council called for « the establishment of an effective removal and repatriation policy based on common standards for persons to be returned in a human manner and with full respect of their human rights and dignity ». The necessity for common return procedures has been reaffirmed by the European Commission’s Communication implementing the Hague Programme as one of the key strategic priorities. [3]

The Return Action Programme as adopted by the Council in November 2002 states the main priorities given in the field of return policy. From this document it seems clear that the Member States decided to give priority to « operational co-operation », while leaving the setting up of common standards to a subsequent phase. [4] It was only at the European Council of June 2004 (Irish Presidency Conclusions) that the creation of the ERF was agreed upon. [5] The Council Conclusions also introduced the category « integrated return management », which constitutes the basis of the European Commission’s proposal for a Decision establishing the ERF of April 2005. [6] It was also decided that the Commission would start with preparatory actions on return. The first call for proposals for the preparatory actions expired in October 2005. [7] According to the text of the proposal for the ERF, [8] preparatory actions will be implemented in 2005 and 2006, and the evaluation will follow in 2007, thus paving the way to the start of the Fund in 2008.

The general objectives of the ERF are to « support the efforts made by the Member States to improve the management of return to all its dimensions through the use of the concept of integrated management ». [9] In the light of this, a first positive effect of the ERF resides in the fact that Member States could be encouraged to duly apply the concept of « integrated return management » while implementing return actions. Although the description of integrated return plans given in Art. 3.2 of the initiative is rather general, we could argue that the implementation of return actions under the Fund could potentially improve Member States’ practices. [10] Not only could it lead to a more uniform set of practices, but it could also bring an improvement in quality standards, by asking for regular assessment and the respect of human rights and dignity as selection criteria for funding.

From the text of the Commission’s proposal, and particularly from the Explanatory Memorandum, it appears that the implementation of « integrated return management » will take place in accordance with the principle of « solidarity in the allocation of resources ». [11] As we know, Member States have different financial needs as far as the organisation of return actions is concerned. Some of them suffer from a lack of resources available to organise return actions and this heavily affects « the way » in which such actions take place. By co-financing return actions, the EU could contribute to an increase in quality standards and consequently foster the respect of human dignity of returnees. Sharing the burden of the external border is indeed an added value in the development of a common immigration policy.

2. LEGAL VULNERABILITIES OF THE ERF

2.1. Human Rights Guarantees

There are concerns that the implementation of an ERF will not provide sufficient human rights guarantees and that it will not ensure that only those people « liable » for return are indeed returned. As a premise, any « return » or « removal » should take place in a humane manner and in full respect of international and European human rights legal commitments and standards. In addition to offering a stronger set of safeguards against refoulement, the right to an effective remedy and of appeal before the judiciary should also be at the heart of the set of rights conferred to any « irregular migrant ». Those qualified as « vulnerable groups » (i.e. refugees, family members, child, victims of trafficking, etc.) should be specially protected. However, in our view, few guarantees appear in the Commission’s proposal in this regard. Among those few are included the proposal’s reference to the need to perform forced repatriation with respect to persons, « in full compliance with humanitarian principles and respect for their dignity » [12] or « to execute/enforce speedily removal decisions in full respect of human dignity ». [13]

Article 5 of the proposal contains a list of measures to which returnees « may » be entitled, such as information, procurement of travel documents, necessary pre-return medical checks, cost of travel and food. According to this article, « in all cases » returnees have the right to « pre-return information ». However, « only voluntary returnees » have the right to « comprehensive pre-return information ». This distinction is in our opinion not clear and leads the reader to assume that voluntary returnees are entitled to more information than the forced returnees. [14] Last but not least, it has to be noted that the wording in the opening sentence of Art. 5 –« Actions supported may include the following measures » (emphasis added) –imply that the actions mentioned appear as maximum rather than minimum common standards

We share the view that the reasons and practices for « expulsion » should not be completely left in the hands of the Member States and that the latter should not in any event take place if there is any « danger » for the human rights dimension. Also, in the case that a « return decision » is not actually made, the irregular migrant should not be left in a legal vacuum without any secure juridical status. [15] The application of the European Convention on Human Rights and other European and International commitments (such as the 1951 Geneva Convention on the status of refugees and its Protocol) have to represent the very pillars for the progressive building of a common policy on immigration, and particularly of a common return policy of irregular immigrants.

2.2. The Legal Basis

Another legal vulnerability is related to the legal basis used by the Commission proposal, which refers to « repatriation » rather than « return ». The juridical roots of the initiative on an ERF are found in Article 63.3.b of EC Treaty (Title IV) which calls upon the Council to adopt measures on immigration policy as regards « illegal immigration and illegal residence, including repatriation of illegal residents ». According to the European Commission’s glossary of JHA, « repatriation » is the process of returning a non-EU national to his or her country of origin. [16] However, it is striking to see how the text of the Commission’s Proposal on the ERF foresees the possibility to « return » to countries of origin, « former residence or transit ». [17] It is our view that any measure being adopted by the Council should strictly follow the legal basis provided in the EC Treaty and limit EU action to « repatriation » of those irregular immigrants to their country of birth, citizenship or origin. A broad interpretation of article 63 (3) (b) could imply serious human rights considerations, since it may lead to the expulsion of third-country nationals to countries with which they have no links, and where the compliance with human rights is not guaranteed.

2.3 Lack of Common Definitions

The ERF suffers from a lack of commonly shared or consolidated definitions in the field of irregular immigration and « return ». As Guild has pointed out, there are deep conceptual and juridical problems inherent to the framing of what « illegal immigration » is in the EU. [18] There is neither a commonly agreed definition regarding the target group or personal scope of the ERF and the EU Action on Returns. Looking at the European Commission’s initiative on the ERF, it seems that the proposal would target the « return » of any person falling within the unfortunate category of « illegally staying third-country national ». The personal scope of the Directive is defined in Article 2 which embraces as the targeted group those non-EU nationals who do not meet the conditions of entry as stipulated in Article 5 of the Schengen Convention or who are otherwise staying in an « irregular status » inside the territory of a particular Member State. [19]

In addition, the negative brand of « illegal migrant » might ascribe to the individual a status that entails « suspicion ». In fact, the use of the term « illegal » creates a dangerous link between the status of « illegal migrant » and an act of criminality. It favours a situation whereby migration mutates too easily into a security problem. The disapproving connotations that accompany use of this term, alongside the « fight against illegal immigration » could be easily overcome by using instead a rather neutral term, such as ‘irregular’ for this type of immigration. [20] Further, « the security link » between these fields needs to be discredited and abandoned.

2.4. The Target Group

Art. 7 of the Commission’s proposal refers to « third country nationals illegally residing in a Member State ». People who were refused entry in transit zones are excluded from the scope of the proposal. Human rights concerns may be raised in this respect, on the need to have minimum standards also when return actions start from transit zones. In fact, the decision not to apply the Directive to these particular cases may lead to situations where human rights violations may arise, being « justified » by the use of « the exception ». It is our opinion that all the common standards and protection should equally apply to all the territorial areas of the Member States, including transit zones, as well as airport and border zones. The « legal status » of the territory should not constitute a factor to limit or apply a lower level of protection of the individual. [21]

Art. 7 also mentions « rejected asylum seekers » as part of the target groups. The actions for return of people whose asylum request has failed will continue to be eligible under the European Refugee Fund only until the end of 2007. Starting from the 1st January 2008 the return of refused asylum applicants will be covered by the ERF. [22] It is worth mentioning that Art. 7 specifies that the application for asylum of this category must have beenrejected « by a final decision ». This leaves ground for a possible gap concerning the situation of asylum seekers whose request has been refused but who are still in the position to appeal. This category would not be covered by the ERF or by the European Refugee Fund.

3. PRACTICAL VULNERABILITIES OF THE ERF

3.1. The Responsible Authority

Similarly to the other funds, the implementation of the ERF should take place through multi-annual and annual programmes, managed by one responsible authority per each Member State. [23] As for the definition of the responsible authority, Art. 26 reads « the responsible authority may be a functional body of the Member State itself, a national public authority as well as a body governed by the private law of the Member State ». In our view, this definition is excessively vague and wide in scope and does not specify who will manage the Fund at national level. Further, if we refer to the entire chapter V of the Commission proposal, where the institutional setting is described, we do not find a clear reference to the implementation of the objective of increased co-operation between Member States. [24] For instance, if we refer to the list of tasks of the responsible authority in Art. 27, co-operation with the Commission and the responsible authorities of other Member States is only mentioned as the 16th (and last) point. [25]

3.2. The Funding Allocated and its Implementation

As for the financing of the responsible authorities, a fixed sum of €300,000 per Member State (increased to €500,000 for new Member States and acceding countries) is to be completed by a variable sum. The total amounts of funds given to a state will depend on the number of return actions necessary and the number it has already carried out. [26] A calculation will be made on the basis of the number of illegally residing third country nationals subject to a return decision (which will account for 70%) and the number of third country nationals who have left the territory as a result of a return decision (which will account for 30%). [27]

This calculation method might serve as an economic incentive to expulsion, since it might induce Member States to issue an increased number of return decisions in order to receive further financial resources. This system does not seem to guarantee enough protection to returnees, while it favours those actors who are advocating the importance of « ensuring speedy and successful removal procedures ». [28] This brings us back to the human rights considerations explained in section 2.1 on « Human Rights Guarantees ».

It is also worth mentioning that third country nationals who are refused entry in transit zones are not considered in the calculation for the distribution of resources, which might serve as an economic disincentive for Member States to keep third country nationals in transit zones. However, the explanatory memorandum states that Member States can direct funding to actions which would (also) cover this category of persons in accordance with the objectives for the Fund. [29] In this regard, it is also to be noted that some countries lying at the EU external border often organise removal actions from transit zones and the fact that this category is not calculated for the allocation of resources seems to contradict the principle of solidarity.

As for the timing of the implementation of the ERF, it has to be observed that the preparatory actions started with a delay of one year. [30] Since the evaluation of preparatory actions will be completed in February 2006, [31] the actions themselves will take place in 2006 and 2007. Therefore, the time initially foreseen for evaluation (i.e. the whole year of 2007) is considerably reduced. This is a significant point, since the result of evaluation may lead to a change in the institutional and operational framework of the ERF.

4. POLICY RECOMMENDATIONS

4.1. Solidarity and compliance with Human Rights

An EU framework on « irregular migration » and « expulsion » does not need to become the platform for strengthening the Member States’ discretion and « room for action » at time of expulsion of migrant in an irregular status in their own territory. An EU framework needs to provide a common ground for the respect of the set of human right legal obligations (freedom) upon which the European Union is itself founded. It needs to foster the protection of the individual, irrespective of the nationality and « administrative status » of the latter. In any event « forcible expulsion » must not become the general rule under the EU framework on return of those individuals negatively qualified as « illegal ». The voluntary character should effectively take priority, becoming « the norm », in any circumstance. The protection of the rights of the migrant, asylum seeker, and her/his family members, minors and other vulnerable groups should be at the heart of any policy response in the European Union.

The return of third country nationals should only take place towards their country of origin or nationality. This would not only be more coherent with the legal basis chosen for the decision on the ERF, referring to ‘repatriation », but also guarantee the respect of returnee’s human dignity and rights in accordance with international and European standards. It must be ensured that migrants are returned to countries where they will not encounter reintegration problems and their human rights are respected.

4.2. Coherency

The proposal for a ERF and the proposal on common standards and procedures in Member States for returning illegally staying third-country nationals were presented separately. A coherent policy on return should co-ordinate the setting up of common standards with the implementation of operational co-operation at EU level. However, it might be risky to link the two proposals since this will mean blocking the funding to the whole package on ‘Solidarity and Management of Migration Flows’ in case of delay in the approval of the proposal on common standards. A constructive approach could be to ask for the introduction of more explicit minimum guarantees for third country nationals within the ERF proposal (reference to international conventions could be also encouraged)

A coherent return policy might be better implemented by the creation of a single and comprehensive return instrument. According to the current Commission’s proposal, the actions for voluntary return of refugees will continue to be covered by the European Refugee Fund. This distinction between actions targeting « illegal immigrants » and third country nationals under international protection (i.e. refugees or asylum seekers) should be clarified. Assurances should be given that return actions targeting both categories are implemented with the same quality standards.

The method suggested for calculating the allocation of resources could serve as an economic incentive to expulsion. In order to avoid this effect, one could avoid considering the number of third country nationals who have left the territory as a result of a return decision, counting for 30% according to the current Commission’s proposal. If the calculation was based only on the number of illegally residing third country nationals subject to a return decision (now counting for 70%), the incentive to expulsion would fail.

4.3. Efficiency

The evaluation of preparatory actions should be carefully considered in order to create an effective implementation structure for the ERF. The results of the projects realised under this preliminary phase could help the Commission in identifying Member States’ needs and foster best practices. The evaluation exercise could be used to define more precisely the content of eligible actions, eligible measures as well as the nature and tasks of responsible authorities.

The European Return Fund : Added Value and Vulnerabilities