EU Return Policy: Return Directive Monitoring

1. Return Directive (2008/115/EC) Monitoring of removals 8th NPM Workshop Geneva, 20 March 2012 European Commission Directorate General Home Affairs Istvan DOBO, European Commission DG HOME C1 External Borders and Return Policy

2. Return Policy of the European Union • EU return policy is an integral and necessary part of a comprehensive European Migration Policy. • Key instruments:The Return Directive & the European Return Fund • Key features of the EU return policy: • Respect for fundamental rights; • Promotion of the principle of voluntary departure; • Provision of minimum set of basic rights (healthcare, schooling of minors) pending removal; • Limiting the use of coercive measures; • European dimension of national return measures; • Fostering operational co-operation between MS. 2 European Commission Directorate General Home Affairs

3. Return Policy – Return Directive introduction Return Directive: Harmonise existing national rules in EU Member States Dual objective of protection (respect for human rights and fundamental freedoms of the persons concerned) and promoting effective return. Who is bound ? All EU Member States except Ireland and UK plus the associated Schengen States (NO, CH, IS, LI) Current (March 2012) State of Transposition: All MS except 5 (BE, LT, SE, PL, IS) have completed transposition. Evolving ECJ case law: Three judgements (preliminary references C-357/09, C 61-11 and C 329-11) in which ECJ clarified the impact of the detention related provisions of the Return Directive on national law. 3 European Commission Directorate General Home Affairs

4. Return Policy – Return Directive - Key features 1-2 • Return Directive: • Broad horizontal scope: Scope covers any irregularly staying third-country national (overstayers, rejected asylum seeker, irregular entrants, …). • Obligation to issue return decision to any third-country national staying illegally on the territory. But: MS may decide to grant an autonomous residence permit for humanitarian or other reasons (e.g. 2004/81/EC permit) •  Philosophy behind: MS are obliged to say “A” or “B”; No longer “grey areas”. 4 European Commission Directorate General Home Affairs

5. Return Policy – Return Directive - Key features 3-4 3. Priority for voluntary departure: MS shall provide for an appropriate period of voluntary departure ranging between 7 and 30 days – unless there is a counter-indication such as risk of absconding. Possibility to extend the period 4. EU wide entry-ban: Return decisions shall be accompanied by an entry ban if no period for voluntary return has been granted, or if the obligation to return has not been complied with. In other cases: may-provision. Length: max 5 years, but possibility of prolongation. Special derogation for victims of trafficking - Article 11(3)  Philosophy behind: Carrot and stick: 5 European Commission Directorate General Home Affairs

6. Return Policy – Return Directive - Key features 5-6 • 5. Special safeguards: • Article 5 – take due account of the best interests of the child, family life, the state of health and respect the non-refoulement. • Article 8(6) – effective forced-return monitoring system. • Article 9 – postponement of removal (non-refoulement (absolute) + taking into account specific circumstances of individual case) • Article 10 - special safeguards for unaccompanied minors (assistance by appropriate bodies other than return authorities + return only to family member, guardian or adequate reception facilities). • Article 13 – legal remedies (right to turn to impartial + independent appeals body which has power to suspend return + free legal aid). • Article 14 – basic rights pending return (Family unity, health care, schooling, special needs of vulnerable persons) 6 European Commission Directorate General Home Affairs

7. Return Policy – Return Directive - Key features 6-7 • 6. Limitations on detention: Only if less coercive measures (alternatives to detention) can’t be applied. As short as possible and only as long as removal arrangements are in progress. Speedy judicial review. Maximum period: 6 months – Prolongation up to total of 18 months in case of lack of co-operation or delays in obtaining documentation. • 7. Humane and dignified detention conditions. In specialised detention facilities; never together with ordinary prisoners; Special attention to situation of vulnerable persons; relevant and competent NGOs have right to visit detention facilities; 7 European Commission Directorate General Home Affairs

8. Return Policy – Return Directive - Key features 8 8. Detention of minors and families: Only as measure of last resort, Separate accommodation for families; Access to education and leisure activities for minors; Special accommodation for unaccompanied minors in institutions with personnel and facilities which take into account the needs of persons of their age; Best interests of the child 8 European Commission Directorate General Home Affairs

9. The main challenges for the next years will be: • Monitoring the correct implementation of the Return Directive • Foster voluntary return by providing focused financial support to MS under the Return Fund; • - Consider the need for common standards on "non-removable returnees" – study on possible costs and benefits of establishing common EU standards, conducted in the course of 2012; • Consider HR compatible apprehension practices (with FRA) • Prepare the first application report of the Return Directive (due by December 2013) 9 European Commission Directorate General Home Affairs

10. Monitoring of returns Art.8(6) of the Return Directive: “Member States shall provide for an effective forced-return monitoring system.” 10 European Commission Directorate General Home Affairs

11. Monitoring of returns • Conclusions of "Contact Committee Return Directive“ on forced return monitoring: • Forced-return monitoring should be understood as covering all activities undertaken by Member States in the respect of removal; • should include third-party involvement involving monitoring by organisations/bodies different from the authorities enforcing return; 11 European Commission Directorate General Home Affairs

12. Monitoring of returns Main findings and recommendations of the Comparative Study on Best Practices in the Field of Forced Return Monitoring : http://ec.europa.eu/home-affairs/doc_centre/immigration/docs/studies/Forced%20Return%20Monitoring%20Study%20Final%20Report.pdf 12 European Commission Directorate General Home Affairs

13. Existing Systems 13 European Commission Directorate General Home Affairs

14. Existing Systems – National Interpretation of ‘Effective Monitoring System’ 14 European Commission Directorate General Home Affairs

15. Ensuring Transparency & Effectiveness – Organisations Recommendation 1:Organisations entrusted with monitoring forced returns should be different from the enforcement authorities. If observation duties extend beyond monitoring the interaction between officials and returnees during the pre-departure/operation phase (see Recommendations 5 and 7), monitors may be required to have a relevant professional background (e.g. human rights related, medical). Recommendation 2:Monitors should be automatically informed of impending return operations. Recommendation 3:Existing funding opportunities should be maximised. Recommendation 4:Cooperation between all stakeholders should be facilitated and encouraged. 15 European Commission Directorate General Home Affairs

16. Ensuring Transparency & Effectiveness – Scope • Recommendation 5: Comprehensive forced return monitoring should encompass all phases (or as many phases as possible) from pre-return to arrival/reception in the destination country. 16 European Commission Directorate General Home Affairs

17. Ensuring Transparency & Effectiveness – Tasks and Competences Recommendation 6:Monitors should be able to decide what cases to monitor on the basis of agreed criteria. Recommendation 7: Observation duties may go beyond monitoring the interaction between officials and returnees (e.g. during the pre-departure phase or return operation) to include interaction with returnees and review of returnee files. Recommendation 8:Team leaders of all stakeholder groups ‘on the ground’ should consistently liaise to identify, prevent and de-escalate problems, especially but not exclusively where monitors have no intervention powers. Recommendation 9:Authorities should use monitoring reports as guidelines for systematic improvement. 17 European Commission Directorate General Justice, Freedom and Security

18. Recommendations related to Frontex Joint Return Operations • Number of Monitors: • Lead countries could nominate a monitor • Large operations could be monitored by several monitors • Reporting and Guidelines: • Monitors could draft a common monitoring report (per return operation) addressed to Frontex to help further develop guidelines • In the interest of transparency Frontex should report annually to the European Parliament on the findings of monitors and actions it has taken as a result of their findings. • Special Monitors: • In the longer term, a pool of monitors across EU Member States should be established, trained especially to monitor joint flights against the guidelines set up by Frontex and based on international human rights law, EU fundamental rights etc. 18 European Commission Directorate General Justice, Freedom and Security

19. The role of Frontex in the implementation of the EU return policy What is Frontex? What it has to do with return? 19 European Commission Directorate General Home Affairs

20. New provisions in the amended Frontex Regulation on return cooperation • the Agency shall provide the necessary assistance and at the request of the participating Member States, ensure the coordination or the organisation of joint return operations of Member States, including through the chartering of aircraft for the purpose of such operations. • finance or co-finance the operations (sources, conditions) • develop a Code of Conduct • draw up a rolling operational plan • cooperate with competent authorities of third countries 20 European Commission Directorate General Home Affairs

21. The role of NPM’s and other independent bodies in the monitoring of removals in EU Member States 21 European Commission Directorate General Home Affairs