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Deportations: Council Presidency proposes systematic monitoring of readmission cooperation and sanctions for non-compliance

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The Finnish Council Presidency wants EU member states to consider new methods for encouraging 'third countries' to accept their own nationals deported from the EU, according to a note (pdf) sent to the High-Level Working Group on Asylum and Migration and the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA).

NOTE from: Presidency: Policies and tools to enhance readmission cooperation - Presidency discussion paper (LIMITE document 13190/19, 8 November 2019, pdf)

The note states that:

"The EU's comprehensive approach to migration provides an efficient framework with which to engage with third countries on migration issues in mutually beneficial ways...

One of the priority areas in such partnerships is a well-functioning and effective return and readmission process. Currently, return rate of irregular migrants in the EU remains low." [emphasis added throughout]

Partnerships and leverages

The document highlights ongoing attempts to make use of "leverages" in trying to convince non-EU states to cooperate on readmission:

"The Commission's Communication from June 2016 on establishing a Partnership Framework with third countries [available here, pdf] called for the use of all policy tools to support migration partnerships, including development and trade, for the purpose of delivering on returns and readmission."

It also cites European Council Conclusions from 2016, 2017 and 2018, which:

"invited the EU and the Member States to do more 'to facilitate effective returns', for instance by 'creating and applying the necessary leverage by using all relevant EU policies, instruments and tools, including development, trade and visa'. Moreover, there is a general understanding that migration, including returns, should be firmly embedded in the EU's overall relationships with third countries.

In the European Agenda on Migration, the Commission notes that 'the EU should be ready to use all leverage and incentives at its disposal'."

There appears to be an appetite for new and more powerful measures. The Presidency notes that:

"During the discussions on the revised Return Directive, a number of Member States insisted on the importance of using wider leverage and incentives to reinforce and complement more effective national return procedures."

Concrete procedures

Now is the time, the Presidency argues, to develop:

"concrete procedures for situations in which a third country systematically refuses to cooperate on returns and readmission."

And also notes:

"With the amendment of the Visa Code coming into force in February 2020, the EU will soon have a concrete leverage tool at its disposal backed by an assessment of third countries' cooperation on readmission. This assessment by the Commission, based on information provided by Member States, could facilitate discussions on the use of other leverages as part of comprehensive partnerships with third countries...

An informal coordination mechanism may also be on the cards:

"In July's informal SCIFA, an idea of an EU Coordination Mechanism for Returns was proposed.

As follow-up to the launch of the idea in July, the Finnish Presidency now aims to take the debate to a more concrete level. This paper aims to explore different possible options to enhance the use of leverages towards third countries."

The current situation - using the new Visa Code

Newly agreed amendments to the Visa Code Regulation (in Article 25a), applicable from 2 February 2020, are described by the Finnish Presidency as:

"the first concrete steps taken to improve cooperation on returns by introducing a system whereby the EU can use various visa related measures as a leverage to get third countries to commit to functioning readmission. The new visa leverage mechanism consists of two distinct steps. The first is the Commission's regular assessment, based on objective criteria, of the cooperation of third countries on readmission. A Member State may also notify the Commission if it is confronted with substantial problems in cooperation on readmission with a third country. This part in itself is not an element of visa policy but rather that of return and readmission policy."

The second step involves the Commission making a propsoal to the Council to adopt a decision for either visa restrictions or visa facilitation, depending on the level of cooperation.

At the September 2019 meeting of the Integration, Migration and Expulsion Working Party (IMEX) visa leverage was discussed and it was noted that:

"The role of Frontex in collecting data will be central."

It was agreed that IMEX was the best placed to prepare the Commission's assessment report. This would take place at least once a year and include notifications from Member States on readmission cooperation.

Informal leverage

The Finnish Presidency's note also recounts the establishment of an "informal visa leverage mechanism" by Coreper (the Committee of Permanent Representatives) in 2017. This mechanism:

"was never formally used. However, its mere existence helped to promote cooperation with with Bangladesh and later with Côte d’Ivoire."

Leverage everywhere

The "possibility of including leverage provisions in the Return Directive" is also raised by the Finnish Presidency:

"the EU's return framework does not currently contain a reference to the use of leverages or guide the assessment of readmission cooperation. If the mechanism would be included in EU legislation, one possible place for it could be in the Return Directive."

The new article in the Visa Code does not establish precisely what steps the Commission should take in cases where a lack of cooperation is identified, nor does the Visa Code set out an obligation for any steps to be taken. The Finnish Presidency therefore suggests:

"These steps could be defined in the new Article of the Return Directive as follows:

  • Informing the third country in question about the result of the assessment and using the EU's diplomatic relations to improve cooperation with the third country concerned,
  • Proposing a readmission agreement or an informal arrangement with the EU and,
  • After evaluating the overall relations of the EU and the third country in question, considering different measures to improve cooperation on readmission through negative or positive incentives."

If this does not produce "adequate results," then:

"the final step would be the possibility for the Commission to propose one or several appropriate measures, taking into account the overall relations of the EU and the third country."

The note further discusses the possibility of "a new regulation establishing an EU readmission leverage mechanism," which:

"would define the assessment of readmission cooperation, the notification procedure for the Member States, the measures that would follow and the way to select and coordinate between the various tools."

The Presidency closes by noting that "there might be other possible options which are worth discussing," which it would "warmly welcome".

NOTE from: Presidency: Policies and tools to enhance readmission cooperation - Presidency discussion paper (LIMITE document 13190/19, 8 November 2019, pdf)


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