European Commission
MEMO
Brussels, 28 March 2014
Frequently Asked Questions: the EU Return Policy
What is this Communication about?
This Communication reports on the changes to EU return policy over recent years, analyses its impact, and presents some ideas for future developments.
It responds to the Commission’s obligation to submit a report to the European Parliament and the Council on theimplementation of the Return Directive (Directive 2008/115/EC), the main piece of EU acquis on return. It highlights to accomplishments under the Return Directive and identifies areas for further work.
Why did the EU agree on common rules in the field of return?
A common EU approach to the return of irregular migrants is an important part of a common Immigration and Asylum Policy.
The Return Directive is aimed at ensuring speedy and efficient return procedures, while fully ensuring the protection of fundamental human rights,
It establishes clear, transparent and fair common rules concerning return, removal, the use of coercive measures and detention in connection with such operations, as well as the imposition of bans on re-entry, while guaranteeing the respect of the human rights and fundamental freedoms of the persons concerned.
Will the Commission propose amendments to the Return Directive?
The action set out in the Communication focuses on ensuring proper and effective implementation of the existing rules, rather than to embark on new legislative initiatives.
It proposes to promote fundamental rights-compatible practice, cooperation between Member States as well as cooperation with non-EU States.
The aim is to further consolidate and deepen the achievements of the EU's return policy over the next years.
What was the overall impact of the Return Directive over recent years?
The Communication provides fact-based evidence that the Directive which had been broadly criticized as "directive of shame" at the time of its adoption in 2008, has proven to be rather a "directive of protection". It contributed to promote:
- Respect for fundamental rights;
- fair and efficient procedures;
- reduction of cases in which migrants are left without clear legal status;
- primacy of voluntary departure;
- reintegration and fostering of alternatives to detention.
These positive changes have also been confirmed both by civil society actors (NGOs active in the field of migration) as well as international bodies. The United Nations International Law Commission’s eighth report on the expulsion of aliens, in which the UN Special Rapporteur acknowledges that the EU’s Return Directive ‘contains extremely progressive provisions on such matters that are far more advanced than the norms found in other regions of the world.’
Did Member States transpose the Directive in time?
After three years of negotiation, the Return Directive was formally adopted by the European Parliament and the Council on 16 December 2008 (Directive 2008/115/EC). All Member States, except UK and Ireland, as well as the four Schengen associated States are bound by the Directive.
Member States were given two years to transpose the terms of the Directive into national law, i.e. until 24 December 2010.
Four Member States (EE, ES, PT, SK) notified full transposition before the deadline. Nineteen Member States notified transposition in 2011, and five (BE, LT, NL, PL and SE) notified it in the course of 2012. The Commission had opened 20 infringement procedures for non-communication, all of which were closed after Member States belatedly notified their national transposition measures. To date, only Iceland has not yet notified full transposition.
What did the Commission do to check the correct transposition?
The Commission carried out an organised programme of work on the transposition of the Return Directive (2012-2013), during which shortcomings were identified and possible solutions discussed with each Member State. This has proved very helpful and the majority of transposition issues were settled.
- Six Member States, out of the eleven that had not fully transposed Articles 3(7) and 15(1), changed their legislation to legally define objective criteria to assess whether there are reasons to believe that an irregular migrant will abscond. This helps limiting the number of migrants kept in detention.
- Six Member States, out of the seven that had not fully transposed Article 15(4) of the Directive, have amended or are currently amending their national laws to provide that detention will cease if there is no reasonable prospect of removal.
- Four Member States, out of the six that had thus far not allowed NGOs and international organisations to visit detention centres, have amended or are in the process of amending their laws.
- Four Member States, out of the six who had not yet done so, have now revised their rules on the access to free legal assistance (Article 13(4)).
- Thirteen Member States, out of the sixteen that had not transposed Article 8(6), have already or are currently adopting legislation to set up a forced return monitoring system;
- Eleven Member States, out of the fourteen who had not yet done so, have formalised or are in the process of formalising the commitment that any removal by air will be carried out in line with the Common guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC.
In those cases in which it was not possible so far to obtain commitment from Member States to change their legislation in accordance with requests from the Commission, steps have been taken to try clarifying or resolving problems. Should this not materialise, the Commission will launch formal infringement proceedings where necessary.
What are the remaining shortcomings in Member States?
The implementation report forming part of today's Communication shows that a number of shortcomings remain, such as, aspects on detention conditions or regarding the set-up of independent forced return monitoring systems. In addition, there is scope for improvement in many Member States, with a more systematic use of alternatives to detention and the promotion of voluntary departure.
The Commission will follow up on all shortcomings identified by the implementation report and will pay particular attention to the implementation by Member States of those provisions of the Directive which relate to the detention of returnees, safeguards and legal remedies, as well as the treatment of minors and other vulnerable persons in return procedures.
The evaluation system established under the new Schengen Evaluation Mechanism, coordinated and supervised by the Commission, will provide new opportunities to examine and assess the concrete practices of Member States in these areas, and to check whether Member States are fully complying with the Directive and international human rights standards.
What do statistics show?
The number of apprehensions of irregular migrants in the EU has fallen every year since 2008, with a cumulative decline between 2008 and 2012 of almost 30%. The figure has gone down from about 610000 apprehensions in 2008 to almost 430000 in 2012.
With regard to the return of those without the right to stay in the EU, statistics demonstrate that there is a considerable gap between the persons issued with a return decision (approximately 484000 persons in 2012, 491 000 in 2011 and 540 000 in 2010) and those who, as a consequence, have left the EU (approximately 178000 in 2012, 167 000 in 2011 and 199 000 in 2010).
Provisional data for 2013 confirm this trend and an existing gap.
An overview of statistics is available in the Annex.
Why is there such a big gap between the number of return decisions and the number of effected returns?
There are multiple reasons for this gap, including a lack of cooperation from non-EU countries of origin or transit (e.g. problems in obtaining the necessary documentation from non-EU consular authorities), as well as from the individual concerned (i.e. he/she conceals his/her identity or absconds).
The concern, expressed by some Member States at the time of adoption of the Return Directive, that its protective provisions would undermine the efficiency of return procedures has not materialised: experience confirms that theprocedures and safeguards of the Directive allow for determined action.
What can be done to close this gap?
Improved cooperation with non-EU countries of origin and transit is essential to address challenges linked to the return of third-country. It is necessary to ensure that sufficient incentives are made available for non-EU countries to cooperate better on return, readmission and reintegration issues based on shared interest (e.g. linked to enhanced mobility provisions and other policy areas such as trade, enterprise and industry).
In parallel, better operational cooperation between Member States can also help to improve efficiency. The Commission proposes enhanced practical and operational cooperation in areas such as: promotion of voluntary departure; interaction between national monitoring bodies; improved statistics. It also calls on FRONTEX to further increase coordination of joint return operations and to support Member States by offering training on return issues.
What is the Commission concretely proposing as follow-up in its Communication?
The Communication identifies five fields of future action:
1. Ensuring proper and effective implementation of the existing rules
Several parties will play an active role:
The Commission will ensure proper and full implementation of the Return Directive (in line with its powers under Article 258 of the TFEU);
The Commission and Member States will put a stronger emphasis on compliance with the EU return acquis in the framework of the new Schengen Evaluation Mechanism;
National forced return monitoring bodies will continue to fulfil their role as the inbuilt control mechanism for day-to-day return practices.
2. Promoting more consistent and fundamental rights-compatible practices
The Commission will adopt within one year a ‘Return Handbook’. This will contain common guidelines, best practice and recommendations to be used by Member States’ competent authorities when carrying out return-related activities. It will refer to the EU return acquis and relevant international standards and will address aspects related to: promotion of voluntary departure, proportionate use of coercive measures, forced return monitoring, postponement of removal, return of minors, effective legal remedies, safeguards pending return, humane and dignified detention conditions, safeguards for vulnerable persons etc.
The Commission also supports the Council of Europe in its efforts to codify a set of detailed immigration detention rules based on existing international and regional human rights standards applicable to deprivation of liberty on the grounds of immigration status.
3. Developing further dialogue and cooperation with non-EU countries
Return and readmission issues will continue to be consistently addressedin cooperation dialogues with non-EU countries, such as the Global Approach to Migration and Mobility, and Mobility Partnerships. It will be important to ensure that cooperation on return, readmission and reintegration issues is part of a balanced and consolidated EU policy towards a non-EU country, based on shared interest (e.g. linked to enhanced mobility provisions and other policy areas such as trade, enterprise and industry).
Efforts to build capacity in non-EU countries in the field of return and readmission will be strengthened by improving the ability of the responsible authorities in partner countries to respond in a timely manner to readmission applications,to identify the people to be returned, and to provide appropriate assistance and reintegration support to those who are being returned.
4. Improving operational cooperation between Member States on return
The Commission will use the European Migration Network as a platform to facilitate cooperation among Member States and stakeholders, especially in the field of voluntary departure, as a key tool for the gathering and sharing of information. The European Migration Network will also carry out studies compiling and comparing Member States’ experiences in relation to specific aspects of the return process (i.e. good practices in the return and reintegration of irregular migrants and the use of alternatives to detentions).
Financial support will also be available. The Asylum, Migration and Integration Fund will focus on measures to encourage voluntary departure. Measures, in close cooperation with non-EU countries, to facilitate returnees’ obtaining necessary travel documents will also be promoted.
Further operational cooperation will be promoted between Member States and between Member States and non-EU countries in implementing return and reintegration processes for unaccompanied minors. Cooperation between child protection systems of Member States and non-EU countries should also be encouraged, making best use of the funding options in the Asylum, Migration and Integration Fund.
5. Enhancing the role of FRONTEX in the field of return
FRONTEX is asked to further increase coordination of joint return operations (JROs) in a way which ensures that common standards related to humane and dignified treatment of returnees will be met in an exemplary way, going beyond mere compliance with legal obligations.
FRONTEX is encouraged to further support Member States by offering training on return issues with a special focus on safeguarding returnees’ fundamental rights during the return procedure.
What impact had the Directive on detention?
Before the Return Directive was adopted, the maximum length of detention varied quite significantly across Member States, and in at least nine there was no upper ceiling on how long returnees could be detained. The Return Directive has contributed to a convergence — and overall to a reduction — of maximum detention periods across the EU (6 months as a rule, with the possibility to prolong to 18 months in total).
While the legal time limits of detention have increased in 8 Member States, they have decreased in 12 Member States. It is to be noted that the average length of detention applied in practice appears to be considerably lower than the maximum limit provided for.
Have all Member States created a monitoring system for forced returned?
A large number of Member States have established monitoring bodies as prescribed by the Directive, often with support from the European Return Fund. Seven countrieshave yet to do so and the Commission has already made steps (or will do so shortly) to address the issue, so that, if possible, formal infringement proceedings can be avoided.
In those Member States with a monitoring body in place, there tends to be a broad split with monitoring done by civil society (human rights NGOs), Ombudsmen or authorities with ties to a national Ministry. The evaluation demonstrates that the Return Directive has had substantial impact in the establishment of return monitoring bodies and that there are on-going positive developments as monitoring systems are becoming more established. These monitoring bodies will play an important role as an inbuilt control mechanism for national day-to-day return practices.
Country / Monitoring Body / Type of Monitoring BodyAT / √ / Ombudsman and NGO
BE / √ / Body affiliated to the Belgian Police
BG / √[1] / Ombudsman and NGO
CY / √ / Ombudsman
CZ / √ / Body affiliated to the Czech Parliament
DE / Informal / NGO
DK / √ / Ombudsman and NGO
EE / √ / NGO
EL / √ / Ombudsman
ES / √ / Ombudsman
FI / √ / Ombudsman
FR / No / -
HU / √ / Ombudsman
IT / No / -
LT / √ / NGO
LU / √ / NGO
LV / √ / Ombudsman
MT / √ / Body affiliated to the Ministry of Home affairs and National Security
NL / √ / Body affiliated to the Ministry of Security and Justice
PL / √ / Ombudsman and NGO
PT / √ / Body affiliated to the Ministry of Home Affairs
RO / √ / NGO
SE / No / The Courts, the Parliamentary Ombudsman and the Chancellor of Justice partly perform the function of a monitoring body
SI / No[2] / -
SK / √ / Ombudsman and NGO
CH / √ / Body affiliated to the Federal Department of Justice and Police
IS / No / -
LI / No / -
NO / √ / Ombudsman
IE / No / -
UK / √ / Bodies affiliated to the Ministry of Justice
Annex 1
Number of irregular migrants apprehended in the EU, by Member State (2008-2012)
Annual number of apprehensions of irregular migrants in the EU (2008 - 2012): top-20 countries of origin of the migrants
Main countries of origin of returned third country nationals (2008-2012 and 2012)
Comparison between return decisions and effected returns(2008-2012 and 2012)
1
[1] Proposed only (2012 data via FRA).
[2] A dual monitoring system is currently debated in government which envisages monitoring by the Ombudsman along with NGOs.