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

EXPLANATORY MEMORANDUM

CONTEXT OF THE PROPOSAL

In its Communication on a Common Policy on Illegal Immigration of 15 November 2001 the Commission pointed out that return policy is an integral and crucial part of the fight against illegal immigration. Return policy needs to be based on three elements: common principles, common standards and common measures. The Green Paper on a Community Return Policy of 10 April 2002 elaborated in more detail on the issue of return as an integral part of a comprehensive Community Immigration and Asylum Policy. It highlighted the need for approximation and improved co-operation on return among Member States and put on the table a number of possible elements for a future legislative proposal on common standards in order to trigger a broad debate among relevant stakeholders.

The ensuing Commission Communication on a Community Return Policy on Illegal Residents of 14 October 2002 took into account the results of this public consultation process and sketched a concrete programme for further action, putting particular emphasis on a holistic approach. It made clear that «...for Community action for return 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.»Based on this Communication, the Council adopted its Return Action Programme of 28 November 2002 in which it called for improved operational co-operation among Member States, intensified cooperation with third countries and the establishment of common standards with the aim of facilitating operational return.

Finally «The Hague Programme», adopted by the 4/5 November 2004 Brussels European Council, resumed this issue and expressly asked for the establishment of common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity. It called for the submission of a Commission proposal in early 2005. The objective of this proposal is to respond to this call and to provide for clear, transparent and fair common rules concerning return, removal, use of coercive measures, temporary custody and re-entry, which take into full account the respect for human rights and fundamental freedoms of the persons concerned.

Co-operation among Member States is likely to be successful if it is based on a common understanding on key issues. Consequently common standards should be set in order to facilitate the work of the authorities involved and to allow enhanced co-operation among Member States. In the long term such standards will provide the ground for adequate and similar treatment of illegally staying third-country nationals, regardless of the Member State which carries out the return procedure.

Existing provisions in the area of the proposal

Manifold legislative and non-legislative measures have been adopted as a concrete follow-up of the November 2002 Action Plan on Return [1]. In the context of cooperation in the field of return, Council Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air and Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals represent first important legal milestones.

Directive 2001/40/EC on mutual recognition of decisions on the expulsion of third-country nationals in combination with Council Decision 2004/191/EC setting out the criteria and practical arrangements for the compensation of the financial imbalances provides for a legal frame for mutual recognition of expulsion decisions.

Regarding the financial dimension of return, the Commission has proposed the establishment of a European Return Fund for the period 2008-2013 as part of the general programme: «Solidarity and Management of Migration Flows» (COM 2005(123) of 6.4.2005). Preparatory actions for 2005 - 2007 will help phase in this planned financial instrument.

Download at PDF format

Directive Proposal COM 2005 391 final