Recommendationsand Best Practices

1

AENEAS

RECOMMENDATIONSAND BEST PRACTICES

ON RETURN AND READMISSION

SEPTEMBER 2008

This project is co-funded by the European Union and the project partners under the AENEAS Programme

This publication has been produced with the financial assistance of the European Union and the project partners.

The contents of this publication are the sole responsibility of the General Secretariat of Public Order of the Hellenic Ministry of Interior and the Albanian Ministry of Interior and can under no circumstances be regarded as reflecting the position of the European Union.

The General Secretariat of Public Order of the Hellenic Ministry of Interior and the Albanian Ministry of Interior do not take any responsibilities for any use that may be made of the information contained therein nor for inaccuracies caused through translation. Furthermore, the European Union is not responsible for any use that may be made of the information contained therein.

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TABLE OF CONTENTS

Ι. INTRODUCTION

ΙΙ. BASIC PRINCIPLES AND PRIORITIES OF THE E.U. IN THE FIELDS

OF RETURN AND READMISSION

ΙΙΙ. THE INSTITUTIONAL AND LEGAL FRAMEWORK IN THE FIELDS

OF RETURN AND READMISSION:

1. THE GREEK INSTITUTIONAL AND LEGAL FRAMEWORK

2.THE ALBANIAN INSTITUTIONAL AND LEGAL FRAMEWORK

ΙV. MECHANISMS AND PROCEDURES FOR RETURN AND

READMISSION

1. THE CASE OF GREECE

2. THE CASE OF ALBANIA

V.RECOMMENDATIONS AND BEST PRACTICES

VI. BASIC REFERENCES

VII. ANNEXES

ANNEX 1:READMISSION AGREEMENTS AND POLICE COOPERATION AGREEMENTS BETWEEN GREECE AND OTHER COUNTRIES

ANNEX 2: a)READMISSION AGREEMENTS AND POLICE COOPERATION AGREEMENTS BETWEEN ALBANIA AND OTHER COUNTRIES

b) PROTOCOLS IN IMPLEMENTATION OF THE “AGREEMENT BETWEEN THE REPUBLIC OF ALBANIA AND THE EUROPEAN COMMUNITY FOR THE READMISSION OF PERSONS RESIDING WITHOUT AUTHORISATION

ANNEX 3:PRE-SCREENING FORM USED BY THE ALBANIAN AUTHORITIES

Ι. INTRODUCTION

In its Return Action Programme in 2002, the Council of the European Union defines return “as the process of going back to one’s country of origin, transit or another third country, including preparation and implementation. The return may be voluntary or enforced.”As far as readmission is concerned, it is defined as “an act by a state of accepting the re-entry of an individual (own nationals, third country nationals or stateless persons) who has been found illegally entering to, being present in or residing in another state”.

The above definitions of return and readmission might be useful to keep in mind, taking into account that both issues are of increasing relevance and concern for EU Member states, as well as for third and accession countries.

Indeed, return policy has become a central themeand an integral component of the EU immigration and asylum policy, while the need to consolidate a common EU return policy for persons residing without authorisation is considered crucial in the fight against illegal migration. In this respect, the conclusion and effective implementation of EC Readmission Agreementswith third countries, identified as countries of origin or transit, constitute an integral part of a comprehensive return policy and a useful instrument for the promotion of this policy.

This Recommendations and Best Practices Manual for Return and Readmission was compiled as a result of the work of the Greek-Albanian Inter- Ministerial Working Group, within the framework of the project “Building on Mechanisms to effectively and sustainably implement Readmissions Agreements between Albania, the E.C and concerned third countries”. The project is co-funded by the European Union under the community “Programme for financial and technical assistance to third countries in the areas of migration and of asylum-AENEAS”and the project partners.

The overall objective of the project is to support the Government of Albania in return migration management through the successful implementation of the Readmission Agreement between Albania and the E.C. signed in 2005, within the context of the Albanian National Strategy on Migration and the Priorities of the European Partnership.

In this framework, the project is developed around three main self-standing, but complementary, components:

capacity building of the Albanian institutions in the formulation and implementation of return and readmission policy and training of the administrative bodies charged with the implementation of return and readmission in Albania;

promotion ofco-operative approaches to information exchange between administrations involved in the implementation of Readmission Agreements within a sub-regional approach and support of bilateral interstate cooperation between Albania and neighbouring countries on management of return and implementation of readmission procedures,

support the sustainability of return of Albanian nationals to Albania through supporting their socio-economic reintegration.

The Greek-Albanian Inter-Ministerial Working Group, which falls under thesecond project component, held a total of six meetings during the lifetime of the project both in Athens and Tirana. The main aim has been to establish systematic cooperation and facilitate exchange of information and opinions amongst the Greek and Albanian State authorities with competence on issues of return and readmission.

This manual takes stock ofthe discussions and conclusions of the bilateral Working Group. It also builds upon the publications produced under the preparatory project “Combating irregular migration in Albania and the wider region, targeted support to Capacity building within the framework of readmission support to Albania.”, implemented by IOM and co-funded by the European Union and the Hellenic Ministry of Interior under the EC budget line B7-667.

More specifically, the Manual of Best Practices for Return, Readmission and Integration and, in particular, the Manual for the implementation of Readmission Agreement between the European Community and the Republic of Albania, both produced in the framework of the aforementioned project,are of high relevance to this Manual. Therefore, if interested in practical aspects of the implementation of the EC/Albania Readmission Agreement, the reader is advised to refer to the above publications in conjunction with the present manual.

The added value of this manual however is to present, in a single publication, the institutional and legal framework, as well as the procedures followed for return and readmission in two neighbouring countries, one being an EU member State,receiving large numbers of immigrants during the last two decades and the other being a third country, candidate for accession into the family of the EU, characterized by high emigration rate since the beginning of the 1990s. This allowsa comparative approach and, at the same time, reveals common concerns and difficulties.

Nevertheless, this manual hopes to be a useful tool not only for the state officials and practitioners of the two countries concerned, but for other EU and accession countries as well. The competent State authorities might find it useful, when necessary, to refer to the recommendations and best practices section, always in accordance with their national legislation.It would, of course, be helpful if this handbook were to be updated and enriched with future experience and practices.

II. BASIC PRINCIPLES AND PRIORITIES OF THE E.U. IN THE FIELDS OF RETURN AND READMISSION

The Amsterdam Treaty, which entered into force in 1999, made a common European immigration and asylum policy emerge. The goals of this policy were specified on the occasion of theEuropean Council of Tampere in 1999 and, after having been further developed through successiveEuropean Councils, were re-examined on the occasion of the European Council ofThe Hague in 2004.These goals concern the management of migratory flows, the settingup of a common asylum regime, the equitable treatment of the third country nationals and thepartnership with third countries.On the latter point, successive European Councils calledfor cooperation with third countries in the field of migration, within the framework of an overall, coherent and balanced approach, based on all the relevant European Unioninstruments in the field of external relations.

At the same time, an integral and crucial part of a comprehensive migration and asylum policy is return policy.The European Council meeting in Seville in 2002, in addition to calling for an accelerated implementation of the common policy, issued a Communication on a Community Return Policy on Illegal residents which included an outline for a return action programme, adopted the 28 November 2002. Successive Councils stressed the need to consolidate a common EU return policy as an integral and crucial part of the fight against illegal migration. The basic principles and priorities of this policy are summarized as follows:

• Need for common principles, measures and standards
• Enhanced operational cooperation among EU Member States
• Priority of voluntary return over forced return.
• Protection of human rights and respect of international obligations when implementing return
• Emphasis on promoting channels of dialogue and cooperation with countries of origin and transit
• Implementation of country-specific and long-term return programmes
• Integration of Migration policy in the EU external policy agenda
• Concluding EC Readmission Agreements (RAs) with third countries, as an integral part of a comprehensive return policy.

Concerningin particularReadmission Agreementsbetween the EC and third countries, they are considered to be a valuable instrument of a common return policy,enhancing also the spirit of cooperation with third countries,ensuring more efficient managementof return, while respecting the human rights of the persons returned.

Indeed, member states made an early approach to the problem of illegal immigration and concluded readmission agreements with each other, as well as with third countriesconsidered to be countries of origin and/or transit. In practice, these agreements proved to be an effective and useful tool of an active return policy and to provide a reliable institutional framework for cooperation, as well as for full respect of the human rights of irregular migrants.

TheEC Readmission Agreementsdefine clear, reciprocal obligations and procedures for the return of irregular migrants and will be complemented by bilateral implementation protocols. They also determine the status of non-legal residence, the documents required, the management of cost, regulate legal issues and create obligation of readmission not only for the nationals of the contracting parties, which is foreseen by international law, but for third country nationals as well.

Moreover, an indirect effect of the RAs is increased cooperation between,on the one hand, the third countries that have concluding such an agreement with the EC and are interested in combating irregular stay in or transit from their territory, and, on the other hand,the neighbouring or other sending countries.

Nevertheless, a prerequisite for the effective implementation of Readmission Agreements is systematic and close cooperation between countries of origin, transit and destination. In turn, as mentioned in the Ministerial Conference in Vienna in 2006 by Commissioner Frattini, the smooth implementation of readmission fosters mutual trust and good results in police cooperation and other issues, such as organised crime.

It should be stressed here that in parallel to the implementation of readmission agreements for a regulated and accelerated return procedure, the EU gives priority to voluntary return, which is based on an informed decision freely taken by the individual. Last but not least, ensuring the sustainability of return is crucial for a successful return policy, as reflected in a number of Community initiatives that aim to support the socioeconomic reintegration of returnees in the country of origin.

III. THE INSTITUTIONAL AND LEGAL FRAMEWORK OF GREECE AND ALBANIA IN THE FIELDSOF RETURN AND READMISSION

1. GREEK INSTITUTIONAL AND LEGAL FRAMEWORK

Having been one of the traditional emigration countries until the 1970s, Greece became the destination for large numbers of immigrants since the late 1980’s and in particular since the beginning of the 1990a. Furthermore, irregular immigrants, originating mainly from Eastern and South-Eastern Europe, as well as from other third countries, represent a significant, although, by definition, unknown, proportion of the population of foreign immigrants.

Greece’s geographical position, between Europe, Asia and Africa, is considered to be a crossroad for immigration from Asia and Africa to the Europe and one of the external borders of the European Union; at the same time,Greece is also the final destination for many immigrants.

Following European practice and experience and in accordance with EU policy for combating irregular migration, Greece has concluded readmission agreements and police cooperation agreements that include a readmission clause with third countries, one of which is Albania (Annex 1).These agreements aim atfacilitating improving cooperation between the contracting parties and the improvingtreatment of irregular migrants until their return to their country of origin or the last country of transit. In this framework, the agreements foreseesystematic exchange of information, the use of liaison officers, regular meetings between competentcentral and regional authorities of the contracting parties etc.

With regards to theinstitutional framework regulating the return procedures with the republic of Albania, a Police Cooperation Agreement was signed between Greeceand Albania in 1992 and ratified by law No 2147/1993. The Agreementaddressesvarious issuesof common concerns to the competent Ministries of the two countries (such as combating drug trafficking, counter- terrorism etc.), while Article 4 refers to illegal migration and has been particularly important for both countries. According to this article: “...the contracting parties undertake the obligation to cooperate in combating illegal migration and readmit, persons that illegally cross the borders of one of the contracting parties, coming from the territoryof the other contracting party, as well as their nationals, that reside illegally in the territory of the other contracting party, on the basis of supporting documentsfounding illegal immigration or having exceeded legal residence”.

Consequently, the return of nationals of the two countries takes place on the basis of this agreement and without particular problems. At the same time, the contracting parties have also proceeded to return of nationals of other countries, which entered illegally from Albania to Greece and vice versa.

Legal Framework

The Greek legal framework concerning return and readmission of irregular migrants is fully harmonized with the European Community legislation.More specifically, the expulsion decisions are issued in accordance with the provisions of Law No. 3386/2005 (administrative expulsions) and the Penal Code (court expulsions).

Conditions and procedure of administrative expulsion

1. The administrative deportation of an alien is permitted if:

a. He/she has been sentenced to imprisonment of one year, or regardless of the sentence, has been convicted of crimes against the constitution, treason against the country, crimes related to trade in and trafficking of narcotics, money laundering, international financial crimes, high technology crimes, crimes against the currency, crimes of resistance, abduction of minors, crimes against sexual life and financial exploitation of sexual life, theft, fraud, embezzlement, extortion, usury, violation of the law on brokerage, forgery, false certification, libel, smuggling, crimes related to arms, antiquities, trafficking of illegal immigrants in the country’s territory or facilitation of their transport and trafficking or provision of accommodation them with a view to concealing them, provided that his deportation has not been ordered by the relevantcourt;

b.He/she has violated the provisions of this law; and

c. His/her presence on Greek territory is dangerous for public health or the security of the country or public order.

d. His/her presence on Greek territory is a danger to public health and is refusing to comply with public health protection measures prescribed by the medical authorities, in spite of being adequately informed .

2. The expulsion is ordered upon decision of the local police head and, in the case of the General Police Divisions of Attica and Thessaloniki, by the person responsible for aliens’ issues Police Chief or a senior officer appointed by the appropriate Colonel, after giving the alien a time limit of forty-eight (48) hours to present his objections.

If, according to the general circumstances, it is suspected that the alien may be a flight risk or he is considered dangerous to public order the authorities of the above paragraph may order his temporary detention until the issuance, within three days, of a expulsion decision. Following the issuance of the expulsion decision the detention continues until its execution but it can no way exceed the period of three months.

The alien must be informed about the reasons for his detention in a language he understandsand communication must be facilitated with his lawyer. In this respect, a specific information leaflet, already has been printed in 15 languages, is given to the foreigner.

A detainee alien in accordance with the Code of Administrative Procedure shall be entitled to present his objections to the detention decision before the president of the administrative court of first instance of the region where he is detained, who shall rule on its lawfulness, with analogous application of the procedure.

If it is not suspected that the alien may be a flight risk or he is not considered dangerous to public order or the president of the administrative court of the first instance disagrees with his detention, the said decision shall set forth a time limit to leave the country, which may not exceed thirty days.

Court Expulsion

A court expulsion is ordered by the penal courts of the country to the alien sentenced to imprisonment by the related provisions contained in the international conventions which have been ratified by the country. In the event that the alien is in the country legally expulsion cannot be ordered unless a sentence of at least 3 months has been imposed upon him. Deportation is conducted immediately after the sentence has been served or from release from prison. The same applies when the expulsion is imposed by the court as an ancillary penalty or in the case where the foreigner, to whom political asylum has not been granted, is sentenced to a restriction of freedom sentence of up to five years and is ordered by the same decision the expulsion from the country, the court may order the indefinite suspension of the execution of the sentence and in which case expulsion is carried out immediately.