EU Return Policy

Past, present and future of the European Union's common return policy

Information provided by ERSO member: Caritas Europa

The Treaty of Amsterdam, signed on 2 October 1997, was an important step forward for the establishment of the EU's common asylum and migration policies. The Treaty granted legal competence to the EU in the area of asylum and migration by incorporating the "Schengen-acquis" into the document. The "Schengen-acquis" concerns the gradual abolition of EU internal borders.

In October 1999 the European Council adopted the "Tampere-programme", the work programme to implement the provisions of the Treaty of Amsterdam in the area of asylum and migration. Main elements of the Tampere programme were the creation of a Common European Asylum System (CEAS), measures to improve migration management, the fair treatment of third-country nationals and partnership with countries of origin of migrants coming to the EU.

On the partnership item, the Tampere programme contains the following measures:
"The EU needs a comprehensive approach to migration addressing political, human rights and development issues in countries and regions of origin and transit. The European Council calls for assistance to countries of origin and transit to be developed in order to promote voluntary return.
The European Council invites the Council to conclude readmission agreements between the European Community and relevant third countries or groups of countries."

The Nice (2000) and Laken (2001) European Summits further emphasise the priority given by member states to addressing irregular migration, turning return into a control issue. For the EU, return of asylum seekers whose claim is rejected has become a crucial element of a coherent EU asylum policy. This approach is visible in diverse legal instruments and other measures adopted under the Tampere programme. A provision on "manifestly unfounded asylum claims" in the Asylum Procedures Directive enables member states to accelerate the asylum procedure. The Dublin II Regulation, determining which member state is responsible for processing the asylum application is put into place to « avoid asylum shopping ». The European Refugee Fund, one of the EU's financial instruments to support the implementation of the EU's common asylum policy, allows for funding projects regarding voluntary return. A Regulation establishing a programme for financial and technical assistance to third countries in the areas of migration and asylum (AENEAS) is adopted.

In the mean time, more and more EU member states modify their national legislation and adopt tougher legislation on forced return and removals.

In 2004, the EU adopts the "Hague Programme" 2005-2009. This new five year programme builds upon the achievements of the Tampere programme and aims at strengthening the harmonisation of asylum and migration legislation in the EU. The introduction to the asylum, migration and border policy the Council states that "International migration will continue. A comprehensive approach, involving all stages of migration, with respect to the root causes of migration, entry and admission policies and integration and return policies is needed."

The Hague programme contains a wide range of initiatives regarding return and readmission policy:
"Migrants who do not or no longer have the right to stay legally in the EU must return on a voluntary or, if necessary, compulsory basis. The European Council calls for the establishment of an effective removal and repatriation policy based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity."

The tone has changed. Voluntary return is no longer the priority, on the contrary, the Programme calls for a "strong" removal policy. Measures include a directive on minimum standards for return procedures, the launch of a preparatory phase of a European return fund, to be followed by the establishment of a Return Fund, the conclusion of Community readmission agreements, the development of common integrated country and region specific return programmes. These developments are supported by a strengthened operational cooperation between the member states, including Joint return flights (charter flights) and member states' initiatives on border control.

The establishment of a common EU return policy is more than ever a core element in the EU's "fight against illegal immigration". The readmission agreements are designed to facilitate forced removals, the Return Fund provides for financial support to return management, in particular through funding voluntary and forced return projects, and the draft return directive aimed at harmonising member states' legislation on forced returns of third country nationals with irregular residence in the EU.

Caritas Europa is very much concerned about the draft return directive and in particular about the provisions on the use and period of detention pending forced removal, insufficient safeguards for an effective judicial review of removal decisions and the re-entry ban which may have potentially far-reaching consequences for the principle of non-refoulement.

Caritas Europa together with its partner organisations in its comments to the draft return directive has expressed its deep concern by the infringements of human rights which have been committed in the course of forced repatriation e.g. the deaths in Austria, Belgium, France, Germany and the United Kingdom; and the risk of collective expulsion. The readmission agreements negotiated or concluded by the EU or by member states bilaterally, particularly with countries across the Mediterranean Sea, are of considerable concern as well: they have an impact on forced removals and there are cases which have to be seen as collective expulsions.

Caritas Europa and its partners call for a rights-based approach to the EU's common return policy. To that end the organisations have published a list of common principles. The first principle is the priority for voluntary return. The option of consensual compliance with mandatory return, including through counselling and material assistance, should be available and prioritised over reliance on forced removal. A distinction in the procedure between the ending of a leave to remain and carrying out of the removal order should be provided in order to allow the person a limited but sufficient period of time to organise voluntary return. Caritas Europa will continue its advocacy work towards the European Institutions during the negotiations on the proposed directive. Moreover; Caritas Europa and its member organizations providing counseling and assistance to voluntarily returning migrants are currently implementing a European project "Enhancement of the co-operation between 10 European Reintegration Support Organisations" (ERSO). The ERSO project, co-funded by the EC under the ERF budget line, aims at sharing know-how and promoting international cooperation in counseling and supporting voluntarily returning migrants.

Caritas Europa expresses the hope that the EU's commitment to promote voluntary return in accordance with international Human Rights' standards, as expressed in the Tampere Programme, will be translated in the legal and financial instruments that are currently being developed by the EU.

Peter Verhaeghe (Migration Officer, Caritas Europa)
26 April 2007