Tag Archives: Illegal migration

Sanctions against the employment of illegally staying non-EU nationals

Sanctions against the employment of illegally staying non-EU nationals

Outline of the Community (European Union) legislation about Sanctions against the employment of illegally staying non-EU nationals

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Internal market > Living and working in the internal market

Sanctions against the employment of illegally staying non-EU nationals

Document or Iniciative

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

Summary

The directive requires Member States to prohibit the employment of illegally staying non-EU nationals. It lays down common minimum standards on sanctions against employers who infringe the prohibition. Member States may decide not to apply the directive to illegally staying non-EU nationals whose removal has been suspended and who have been granted permission to work under national law.

Employers’ obligations

Employers are obliged to:

  • require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment;
  • keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities;
  • notify the authorities within the period established by the Member State when they employ a non-EU national.

In cases where the employer is an individual who engages a non-EU national for private purposes, Member States may provide for a simplified procedure of notification. Member States may decide not to require notification when the non-EU national has been granted long-term residence status.

Sanctions

Member States must ensure that infringements are subject to effective, proportionate and dissuasive sanctions, including:

  • financial sanctions in relation to each illegally employed non-EU national;
  • payment of the costs for returning the illegally employed non-EU nationals.

The financial sanctions may be reduced for individuals employing illegally staying non-EU nationals for private purposes, provided that the working conditions were not exploitative.

Member States must ensure that employers are liable to make back payments, such as outstanding remuneration, including the cost of sending it to the employee’s country of origin, and social security contributions. To calculate the back payments, the employment relationship is presumed to have lasted for at least three months unless proved otherwise.

Member States must put in place the necessary mechanisms whereby illegally employed non-EU nationals may claim any outstanding remuneration from their employers. The non-EU nationals must be informed of their rights before their return is enforced.

Member States must ensure that employers are also, if appropriate, subject to other measures, such as:

  • exclusion from entitlement to some or all public benefits, including EU funding for up to five years;
  • exclusion from participation in a public contract for up to five years;
  • recovery of benefits granted up to 12 months prior the detection of the illegal employment;
  • temporary or permanent closure of the establishment.

Member States must also ensure that where an employer is a subcontractor, the contractor of which the employer is the direct subcontractor will be held liable in addition to or in place of the employer. However, contractors that have undertaken due diligence obligations defined by national law will not be liable. Member States may also provide for more stringent liability rules in relation to subcontracting.

An intentional infringement constitutes a criminal offence when the employer:

  • persists in his/her non-compliance;
  • employs a significant number of illegally staying non-EU nationals;
  • employs such persons in particularly exploitative working conditions;
  • employs victims of trafficking in human beings;
  • illegally employs minors.

Inciting, aiding and abetting this conduct must also constitute a punishable criminal offence.

Criminal sanctions may be accompanied by other measures, including publication of the judicial decision. Legal persons can also be held liable.

Complaints and inspections

Member States must ensure that illegally employed non-EU nationals can lodge complaints against their employers either directly or through designated third parties. Those working in particularly exploitative conditions may be issued residence permits for the duration of their proceedings on a case-by-case basis, under arrangements comparable to those provided for by Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings and who cooperate with the competent authorities.

Member States are required to carry out effective and adequate inspections based on regular risk assessments to control the employment of illegally staying non-EU nationals.

Background

The Commission suggested these measures in its communication of 19 July 2006 on policy priorities in the fight against illegal immigration. The European Council (15-16 December 2006) endorsed this suggestion, inviting the Commission to present proposals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/52/EC

20.7.2009

20.7.2011

OJ L 168 of 30.6.2009

Community statistics on asylum and migration

Community statistics on asylum and migration

Outline of the Community (European Union) legislation about Community statistics on asylum and migration

Topics

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Justice freedom and security > Free movement of persons asylum and immigration

Community statistics on asylum and migration

Document or Iniciative

Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers.

Summary

This regulation establishes common rules for the collection of Community statistics on migration by European Union (EU) countries. It concerns statistics relating to immigration * to and emigration * from an EU country, citizenship and country of birth of persons resident in the territories of EU countries, and administrative and judicial procedures relating to migration.

Statistics on migration, international protection, illegal immigration and returns

EU countries are required to provide Eurostat with statistics on the numbers of:

  • immigrants moving to their territories;
  • emigrants moving from their territories;
  • persons usually resident in their territories;
  • residence permits issued, including long-term residence permits;
  • natural persons having acquired national citizenship.

EU countries are also required to give the numbers of:

  • persons applying for international protection;
  • persons covered by applications under consideration by the national authorities;
  • applications rejected;
  • applications granting refugee, subsidiary protection and temporary protection statuses;
  • unaccompanied minors;
  • applications and transfers covered by the Dublin II Regulation;
  • persons selected for resettlement *.

In addition, EU countries must provide Eurostat with statistics on the numbers of non-EU country nationals who have been refused entry at their external borders and who have been found illegally present in their territories.

Furthermore, EU countries must provide statistics on the number of administrative or judicial decisions imposing an obligation to leave their territories, as well as on the number of non-EU country nationals who are returned to their countries of origin, countries of transit or other non-EU countries.

Provisions common to the different categories

The statistics are based on:

  • records of administrative and judicial actions;
  • registers relating to administrative actions and population registers;
  • censuses;
  • sample surveys.

As a rule, the statistics are disaggregated by age, sex and nationality. The Commission may adopt other disaggregations, such as the year in which the residence permit was granted for the first time (statistics on residence permits) or reason for refusal or arrest (statistics on illegal entry and immigration).

The Commission is assisted by the Statistical Programming Committee. It will submit a report to the European Parliament and to the Council on the implementation of the regulation by 20 August 2012 at the latest (and then every three years).

Background

This regulation is in response to the conclusions of the Thessaloniki European Council of June 2003, which asked for more effective mechanisms for collecting and analysing information on migration and asylum in the EU. The Commission had previously published an action plan laying down the objectives for developing statistics in this field.

Key terms used in the act
  • Immigration: the action by which a person establishes his or her residence in the territory of another EU or non-EU country for a period of at least twelve months;
  • Emigration: the action by which a person, having previously been resident in the territory of an EU country, changes his or her country of residence for a period of at least twelve months;
  • Resettlement: the transfer of non-EU country nationals to an EU country where they are permitted to reside for the purposes of international protection.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 862/2007

20.8.2007

OJ L 199 of 31.7.2007

Related Acts

Commission Regulation (EU) No 351/2010 of 23 April 2010 implementing Regulation (EC) No 862/2007 of the European Parliament and of the Council on Community statistics on migration and international protection as regards the definitions of the categories of the groups of country of birth, groups of country of previous usual residence, groups of country of next usual residence and groups of citizenship [Official Journal L 104 of 24.4.2010].
To ensure the comparability of statistics from EU countries and to allow the drawing up of reliable EU-wide overviews from these statistics, it is essential that all EU countries define certain categories of groups in the same manner. Consequently, this regulation establishes the categories of groups of:

  • country of birth;
  • country of previous usual residence;
  • next usual residence;
  • citizenship.

EU countries must transmit data to the Commission according to these groups, as listed in the annex to this regulation. The groups of countries and citizenship are divided into basic groups and additional groups of other non-EU countries and citizenship disaggregated by levels of development. The Commission provides lists of countries and citizenships for each basic and additional group.

Commission Regulation (EU) No 216/2010 of 15 March 2010 implementing Regulation (EC) No 862/2007 of the European Parliament and of the Council on Community statistics on migration and international protection, as regards the definitions of categories of the reasons for the residence permits [Official Journal L 66 of 16.3.2010].
To harmonise the collection of statistics by EU countries, this regulation defines in its annex the categories of reasons for issuing residence permits to non-EU country nationals. The list includes categories of reasons relating to:

  • family formation and reunification;
  • education and study;
  • remunerated activities.

Immigration liaison officers' network

Immigration liaison officers’ network

Outline of the Community (European Union) legislation about Immigration liaison officers’ network

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Immigration liaison officers’ network

Document or Iniciative

Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network [See amending act(s)].

Summary

Each Member State posts an immigration liaison officer (ILO) * to its consular authorities in a non-Member State. The ILO maintains direct contacts with the authorities in the host country in order to improve exchanges of information concerning:

  • flows of illegal immigrants originating from or transiting through the host country;
  • the routes followed by those flows of immigrants;
  • their modus operandi;
  • the existence of criminal organisations involved in the smuggling of immigrants;
  • the incidents that may be the cause for new developments with respect to these flows of immigrants;
  • the methods used for falsifying identity documents and travel documents;
  • how best to assist the authorities in host countries in preventing these immigration flows;
  • how best to facilitate the return of illegal immigrants to their countries of origin.

Member States inform one another, the Council and the Commission of their secondments of immigration liaison officers. This information is published on the secure web-based network for the coordination and exchange of information on irregular migration (ICONet).

ILO posted to the same country form a local network in which they:

  • exchange information and practical experience, specifically through regular meetings and via ICONet;
  • coordinate positions to be adopted in contacts with commercial carriers;
  • attend joint specialised training courses and organise training sessions for consular officers of Member States posted in the host country;
  • adopt common approaches as to methods of gathering information;
  • establish contact with similar networks established in the host country and neighbouring countries.

Meetings are held either at the initiative of the Member State holding the Council presidency or at the initiative of other Member States. Representatives of the European Commission and the Frontex agency participate in them, unless operational considerations require meetings to be held in their absence.

Member States may bilaterally or multilaterally agree that ILOs posted by a European Union (EU) country also look after the interests of one or more other Member States. They may also decide to share certain tasks among themselves.

At the end of each semester the Member State holding the Presidency of the Council of the EU draws up a report for the European Parliament, the Council and the Commission on the activities of the ILOs in the countries and regions of particular interest to the EU with regard to immigration. This report is drawn up in accordance with a model provided in Commission Decision 2005/687/EC. On the basis of this report, the Commission then drafts an annual summary of the development of the ILO networks.

Context

This Regulation follows on from the plan for the management of the external borders of the Member States of the EU, which envisages the setting up of networks of immigration liaison officers posted in non-Member States.

Following the Thessaloniki European Council in June 2003 and drawing on experience gained in project management, such as the Belgian-led Western Balkans ILO network, the existence of the network was formally recognised through a legally binding act.

Key terms used in the act
  • Immigration liaison officer: a representative of a Member State posted abroad by the immigration service in order to establish and maintain contacts with the authorities of the host country with a view to contributing to the prevention of illegal immigration and combating this phenomenon.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 377/2004

5.10.2004

_

OJ L 316, 15.12.2000

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 493/2011

16.6.2011

_

OJ L 141, 27.5.2011

Related Act

Council Decision 2005/267/EC of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services [Official Journal L 83 of 1.4.2055].

The ICONet network enables Member States to exchange information quickly on illegal migration flows, irregular entry and immigration and the return of illegal residents. The aim is to combat irregular immigration and human trafficking more effectively.

Common standards and procedures for returning illegal immigrants

Common standards and procedures for returning illegal immigrants

Outline of the Community (European Union) legislation about Common standards and procedures for returning illegal immigrants

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Common standards and procedures for returning illegal immigrants

Document or Iniciative

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.

Summary

This directive provides Member States with common standards and procedures for returning third-country nationals staying illegally on their territories, with certain exceptions. Member States must however ensure that the treatment and level of protection of third-country nationals excluded from the scope of the directive corresponds at least to certain of its provisions on coercive measures, removal, health care and detention. In all cases, Member States must respect the principle of non-refoulement and take into consideration the best interest of children, family life and the health of the person concerned.

A return decision must be issued by a Member State to the third-country national staying illegally on its territory. If the third-country national has a valid residence permit or equivalent from another Member State, s/he must immediately return to that Member State. If another Member State takes back an illegally staying third-country national under a bilateral agreement, that Member State will be responsible for issuing the return decision. Due to compassionate, humanitarian or other reasons, a Member State may provide an illegally staying third-country national with an autonomous residence permit or an equivalent right to stay. Member States should not issue return decisions before the pending procedures for renewing such permits have come to an end.

The return decision must allow for a period of voluntary departure of between seven and 30 days for the illegally staying third-country national. Member States may require that this period is applied for by the person in question. In particular circumstances, the period for voluntary departure may be prolonged. Member States may also impose certain obligations on the third-country national for the duration of this period in order to prevent him/her from fleeing. When the illegally staying third-country national risks fleeing, has submitted a fraudulent application or poses a risk to public/national security, the Member State may grant a shorter period of voluntary departure or no period at all.

If no period is granted, or if the third-country national has not complied with the return decision within the period granted, the Member State must enforce his/her removal. Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove third-country nationals. The removal of a third-country national must be postponed if it breaches the principle of non-refoulement or if the return decision has been temporarily suspended. Member States may also postpone removals in particular circumstances.

An entry ban may be given together with a return decision. However, it must be provided when no period of voluntary departure is granted or when the illegally staying third-country national has not complied with the return decision. The duration of the entry ban must be set on a case-by-case basis, taking into consideration the particular circumstances of the person concerned. In principle, the duration may not be longer than five years, unless the third-country national poses a threat to public/national security. Member States may choose to withdraw or suspend an entry ban for particular reasons. In humanitarian cases, they may even decide to not issue such a ban.

Decisions on returns, entry bans and removals must be provided in writing and accompanied by information on available remedies. On request, the Member State must provide a translation of these to the third-country national, unless it issues decisions by means of a standard form.

Third-country nationals must be given the possibility to appeal against or seek review of return decisions, as well as to obtain legal assistance/representation free of charge. The decisions are to be reviewed by a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. The review body will have the power to temporarily suspend the enforcement of the decisions.

In specific cases, and when less coercive measures are not sufficient, Member States may detain a third-country national during the return procedure if s/he risks fleeing or avoids/obstructs the preparation of return or the removal process. Detentions are ordered in writing by administrative or judicial authorities and must be reviewed regularly. The detention period must be as short as possible and not more than six months. Only in particular circumstances, when the removal of a third-country national might exceed the time limit set, Member States may prolong detention by a maximum of 12 months. Specialised detention facilities are to be used for the purpose; however, if this is not feasible, Member States may use prison accommodation with separate quarters for the third-country nationals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 2008/115/EC

13.1.2009

24.12.2010
(24.12.2011 for Article 13(4))

OJ L 348 of 24.12.2008

Visa Code

Visa Code

Outline of the Community (European Union) legislation about Visa Code

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Visa Code

Document or Iniciative

Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).

Summary

The aim of the regulation is to establish the conditions and procedures for issuing visas for short stays in (maximum of three months during any six-month period) and transit through the Member States of the European Union (EU) and the associated states applying the Schengen acquis in full. It applies to nationals of third countries that must be in possession of a visa when crossing the external border of the Union, as listed in Regulation (EC) No 539/2001.

In addition, the regulation lists the third countries whose nationals must hold an airport transit visa for passing through the international transit areas of Member State airports (Annex IV). In urgent cases of mass influx of illegal immigrants, any Member State may extend this requirement to nationals of other third countries.

Procedures and conditions for issuing visas

The Member State that is the sole or the main destination of the visit is responsible for examining the visa application. If the main destination cannot be determined, the Member State of entry into the Union is competent. In the case of transit, the Member State through which the transit takes place or, in case of multiple transits, the Member State of first transit is responsible. Generally, the visa application must be submitted to the consulate of the Member State concerned.

Member States may establish bilateral arrangements for representing each other for the purpose of collecting visa applications or issuing visas. They may also cooperate through co-location or a common application centre.

A visa application may be lodged by the applicant or an accredited commercial intermediary at the earliest three months before the intended visit. When lodging an application, the applicant must appear in person, unless this requirement has been waived. Upon lodging an application, the following must be presented:

  • an application form, as set out in Annex I;
  • a valid travel document;
  • a photograph;
  • supporting documents as set out in Annex II, as well as proof of sponsorship and/or accommodation if requested by the Member State;
  • proof of possession of travel medical insurance, if applicable.

Apart from certain exceptions, the applicant must allow the collection of his/her fingerprints and pay a visa fee. The visa fee may be waived or reduced in individual cases, for example for cultural, foreign and development policy reasons. An external service provider may charge an additional service fee.

After verifying the admissibility of the application, the competent authority must create an application file in the Visa Information System (VIS), following the procedures set out in the VIS Regulation. A further examination of the application must be carried out to verify that the applicant fulfils the entry conditions as set out in the Schengen Borders Code, does not pose a risk of illegal immigration or a threat to the security of the Member State and intends to leave the Member State before the visa expires.

A decision on an admissible application must be taken within 15 calendar days from the date on which it was lodged. In exceptional cases, this time limit may be extended. A decision is taken on whether to issue or refuse a uniform visa or a visa with limited territorial validity or, in case of representation of another Member State, to discontinue the examination in order to transfer the application to the latter’s relevant authorities.

A uniform visa may be issued for one, two or multiple entries with a maximum validity of five years. For a transit visa (including airport transit visa), the period of validity must correspond to the time needed for the transit. A 15-day “period of grace” is usually added. In certain cases, the period of validity of a visa may be extended. Under certain circumstances, the visa may also be annulled or revoked.

A uniform visa or visa with territorial validity does not automatically provide a right of entry to the visa holder.

A visa is refused if the applicant:

  • presents a false travel document;
  • gives no justification for the purpose and conditions of the intended stay;
  • provides no proof of sufficient means of subsistence for the duration of the stay nor for the return to his/her country of origin/residence;
  • has already exhausted the three months of the current six-month period;
  • has been issued an alert in the Schengen Information System (SIS) for the purpose of refusing entry;
  • is considered to be a threat to the public policy, internal security or public health of one of the Member States;
  • provides no proof of travel medical insurance, if applicable;
  • presents supporting documents or statements whose authenticity or reliability is doubtful.

The applicant must be notified of a decision to refuse, annul or revoke a visa with the standard form set out in Annex VI. Such a decision may be appealed in the Member State that took it, in accordance to its national law.

Exceptionally, a visa application may be submitted to the authority responsible for checks on persons at the external border of the Member State of destination. A visa issued at a border crossing point may allow for a stay of maximum 15 days or cover the time needed for a transit.

Application

This regulation amends the VIS Regulation and the Schengen Borders Code. It also repeals Articles 9-17 of the Convention implementing the Schengen Agreement and the Common Consular Instructions.

The regulation applies from 5 April 2010. Articles 32(2) and (3), 34(6) and (7), and 35(7) apply from 5 April 2011.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 810/2009

5.10.2009

OJ L 243 of 15.9.2009

Defining the facilitation of illegal immigration

Defining the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Defining the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Defining the facilitation of illegal immigration

Document or Iniciative

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.

Summary

With a view to creating an area of freedom, security and justice, the European Union (EU) must take measures to combat the aiding of illegal immigration. To this end, EU countries’ legal provisions regarding such offences must be harmonised.

Consequently, this directive provides a common definition for the “facilitation of illegal immigration”, thus improving the application of the penal framework for preventing the facilitation of illegal immigration.

Infringements

The directive defines the following as infringements:

  • assisting intentionally a non-EU country national to enter or transit through the territory of an EU country, in breach of laws;
  • assisting intentionally, and for financial gain, a non-EU country national to reside in the territory of an EU country, in breach of laws;
  • instigating, assisting in or attempting to commit the above acts.

EU countries must adopt effective, proportionate and dissuasive sanctions for these infringements. However, for the first above infringement, where the aim is to provide humanitarian assistance EU countries are not obliged to impose sanctions.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2002/90/EC

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Penal framework for preventing the facilitation of illegal immigration

Penal framework for preventing the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Penal framework for preventing the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Penal framework for preventing the facilitation of illegal immigration

Document or Iniciative

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.

Summary

Common action between European Union (EU) countries in the fields of police and judicial cooperation in criminal matters is necessary for the creation of an area of freedom, security and justice. In this context, EU countries should also take measures to prevent the aiding of illegal immigration. To this end, this framework decision establishes minimum rules for penalties, liability of legal persons and jurisdiction.

Penalties

The directive defining the facilitation of illegal immigration sets out the infringements for which EU countries must adopt effective, proportionate and dissuasive criminal penalties that may include extradition. These penalties may be supplemented by other measures, such as:

  • confiscation of the means of transport;
  • prohibition to practice the occupational activity in which the offence was committed;
  • deportation.

Certain infringements committed for financial gain must be punishable by custodial sentences with a maximum sentence of not less than eight years, if they were committed as part of activity of a criminal organisation or if the lives of the subjects of the offences were endangered.

Liability of legal persons

Legal persons must be held liable for infringements relating to the aiding of illegal immigration committed for their benefit by any person that has power of representation of or authority to take decisions on behalf or to exercise control within the legal person. If such a person neglects to exercise supervision or control over a person under the authority of the legal person who commits an infringement, the legal person must also be held liable.

EU countries must adopt sanctions for legal persons that are effective, proportionate and dissuasive. These must include criminal or non-criminal fines and may include other sanctions, such as:

  • exclusion from public benefits;
  • temporary or definitive ban on commercial activities;
  • a judicial supervision or dissolution measure.

Jurisdiction

EU countries must ensure that their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. However, if an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside of its territory.

When an EU country becomes aware of infringements breaching another EU country’s law on the entry and residence of aliens, it must communicate this information to the country concerned. If an EU country requests another EU country to prosecute such infringements, it must provide the latter with an official report or certificate describing the provisions of its law that were breached.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/946/JHA

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Related Acts

Report from the Commission of 6 December 2006 based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [COM(2006) 770 final – Not published in the Official Journal].

Agreement with Pakistan on readmission

Agreement with Pakistan on readmission

Outline of the Community (European Union) legislation about Agreement with Pakistan on readmission

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Agreement with Pakistan on readmission

Document or Iniciative

Council Decision 2010/649/EU of 7 October 2010 on the conclusion of the Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation.

Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation.

Summary

The Agreement concluded between the European Union (EU) and Pakistan lays down the principle of systematic return of Pakistani nationals residing without authorisation in a Member State and vice versa. It also organises, under certain conditions, the return of third country nationals and stateless persons.

Denmark and Ireland are not parties to the Agreement.

Readmission obligations

Pakistan and EU Member States mutually agree to readmit their nationals where they do not fulfil, or no longer fulfil the conditions in force for entry into, presence in, or residence on the territory of the other party.

The Agreement lists the documents that may be used as means of evidence of a person’s nationality. If none of the documents listed can be furnished, the competent authority of the Member State wishing to expel the person concerned and Pakistan’s diplomatic or consular representation will interview the person in order to establish their nationality.

Pakistan also undertakes to readmit third country nationals and stateless persons, on condition that such persons:

  • hold, at the time of submission of the application, a valid visa or residence authorisation issued by Pakistan; or
  • entered the territory of a Member State unlawfully coming directly from Pakistan.

This obligation does not apply in the following situations:

  • the person concerned has only been in airside transit via an international airport in Pakistan (remaining in the airport transit area);
  • the Member State has issued the person concerned with a visa or residence authorisation with a longer period of validity than the document obtained by the person in Pakistan.

The Agreement operates on the basis of total reciprocity and the same provisions apply to European nationals residing without authorisation in Pakistan, and to nationals of other countries who have transited via the EU before entering Pakistan unlawfully.

Readmission procedure

A readmission application must be submitted to Pakistan. This formality is not needed if the person is in possession of a valid passport and, where applicable, a valid visa or residence authorisation issued by Pakistan.

For stateless persons and third country nationals, the application must be submitted at the latest one year after the competent authority of the Member State wishing to expel the person has become aware of their unauthorised residence. This period may be extended where there are obstacles to the application being submitted in time.

A reply must be given within a maximum of 30 days. This period may be extended to 60 days, except if the maximum detention period authorised in the Requesting State is less than, or equal to, 60 days.

Reasons for refusal must be given. Where there is no reply within the given time limit, the application shall be deemed to have been agreed to.

The transfer of the person concerned must take place within three months following approval of the application. The Pakistani authorities and those of the Member State shall come to agreement on the transfer date, the border crossing point and possible escorts.

Pakistan also undertakes to authorise the transit of third country nationals or stateless persons if they cannot be returned directly to the State of destination, on the basis of written evidence that such State will take back that person.

All transport costs incurred up to the border crossing point in the State of final destination are to be paid by the Member State requesting readmission.

Implementation

A Joint Readmission Committee composed of representatives from Pakistan and the European Union has been tasked with implementation of the Agreement and with strengthening cooperation and exchange of information between the parties.

The Agreement only applies to persons entering the EU unlawfully after its entry into force.

Context

Readmission agreements form part of EU policy on combating illegal immigration. Several other readmission agreements have been concluded between the EU and Ukraine, Moldova, Georgia, Russia, Western Balkan countries, Sri Lanka, Hong Kong and Macao.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Decision 2010/649/EU

7.10.2010

OJ L 287 of 4.11.2010

A comprehensive European migration policy

A comprehensive European migration policy

Outline of the Community (European Union) legislation about A comprehensive European migration policy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

A comprehensive European migration policy

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 4 May 2011 – Communication on migration [COM(2011) 248 – Not published in the Official Journal].

Summary

The Arab spring revolutions in 2011 resulted in a large influx of immigrants from the Southern Mediterranean, who entered the European Union (EU) illegally via the Italian and Maltese coasts. The EU took emergency measures in order to respond to this situation. However, these events have demonstrated the limited resources of the EU in immigration matters and the need for greater solidarity between the Member States in this area.

Therefore, the Commission presents initiatives aimed at establishing a comprehensive European migration policy which is better able to meet the challenges presented by migration. This policy must respect the European tradition of asylum and protection, while preventing illegal border crossings.

Several aspects of migration are addressed:

  • Crossing the borders

The EU’s external border controls must be effective and must enable a high level of security to be maintained while also facilitating the passage of persons authorised to enter the EU. The Commission intends to strengthen the existing common rules. In particular, it envisages creating a European system of border guards. It also insists on improving cooperation between national authorities and the exchange of operational information in the case of incidents at external borders, specifically via the EUROSUR system. The operational capacities of the Frontex agency must also be strengthened.

An evaluation of Member States’ application of the Schengen rules must be undertaken at EU level, with the participation of experts from Member States and Frontex, led by the Commission. The latter also intends to establish a mechanism allowing for a decision, at European level, defining which Member States would exceptionally reintroduce border controls at internal borders.

Lastly, to prevent irregular immigration, the Commission stresses the need for a balanced and effective European return policy (returning illegal immigrants who do not need international protection to their countries). It requires that all Member States transpose into their national law the Return Directive on common standards and procedures for returning illegal immigrants, and the Directive on sanctions against the employment of person staying illegally. Lastly, it recognises the effectiveness of readmission agreements with third countries, but also believes that the latter must be considered within the framework of the EU’s overall relations with the countries concerned and accompanied by incentives that help the countries to implement them.

  • Moving and living in the Schengen area

The Commission advocates better organised mobility based on cooperation (between the European agencies Frontex and Europol, and between customs authorities and national police authorities), and on new technologies. In particular, a European entry-exit system would enable data on border crossings by third country citizens to be made available to the authorities. In addition, a registered traveller programme would enable automated border control for frequent travellers.

Visa policy is also an important instrument in terms of mobility. In order to avoid abuse of visa liberalisation systems, the Commission proposes the introduction of a safeguard clause which would enable the temporary re-introduction of visa requirements for citizens from a third country benefiting from this system.

At the same time, the Union recognises that migrants constitute an indispensible workforce for the EU, both in terms of responding to labour shortages in certain areas, and in terms of providing a highly qualified workforce. It is therefore important to recognise their qualifications and to facilitate administrative procedures. The Commission hopes to make progress on the draft single permit authorising foreigners to live and work in a Member State and calls on the EU countries to transpose into their national law the Directive on the European Blue Card which facilitates the recruitment of highly qualified persons. It has also put forward proposals on seasonal workers and intra-corporate transferees. In order to provide migrants with clear and practical information, the Commission will launch an EU immigration portal this year.

Lastly, the integration of migrants into European society must respect the balance between the rights of the migrants and the law and culture of the receiving country. It requires efforts on the part of both migrants and receiving countries. Successful integration is essential for maximising the economic, social and cultural advantages of immigration, for individuals as well as societies. In July 2011, the Commission presented a European Agenda for the Integration of Third-Country Nationals.

  • Common European Asylum System

The establishment of a Common European Asylum System must be completed by 2012. It aims to reduce the divergences between EU countries in the outcomes of asylum applications, and to ensure a common set of rights and procedures, as well as compliance with the Geneva Convention on the status of refugees. The European Asylum Support Office will strengthen cooperation in this area.

The Commission insists that the resettlement of refugees (permanent resettlement in a Member State of a refugee who has obtained protection in a third country) must become an integral part of European Asylum Policy.

  • Relations with third countries

Issues relating to migration must be integrated into the EU’s overall external relations. A better balance must be found between organising legal migration, combating irregular migration and maximising the mutual benefits of migration for development. The human dimension must also be strengthened through a migrant-centred approach.

With regard to the Southern Mediterranean countries, the Union has proposed a structured dialogue on migration with the aim of establishing mobility partnerships to facilitate access by their citizens to EU territory in exchange for their collaboration in managing migration flows. The Commission will also revise its Neighbourhood Policy with these countries.

Readmission agreements with Macao and Hong Kong

Readmission agreements with Macao and Hong Kong

Outline of the Community (European Union) legislation about Readmission agreements with Macao and Hong Kong

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Readmission agreements with Macao and Hong Kong

Document or Iniciative

Council Decision 2004/424/EC of 21 April 2004 concerning the conclusion of the Agreement between the European Community and the Macao Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation.

Council Decision 2004/80/EC of 17 December 2003 concerning the conclusion of the Agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation.

Summary

Macao and Hong Kong are Special Administrative Regions of China. Their nationals benefit from a visa exemption for stays in the EU lasting under three months.

The Agreements concluded by the European Union (EU) with Macao and Hong Kong lay down the principle of repatriation of their nationals residing without authorisation in a Member State. The Agreements also organise, under certain conditions, the repatriation of persons who are not permanent residents of these regions (persons from other jurisdictions).

Obligation of readmission

Macao and Hong Kong agree to readmit their permanent residents if they do not, or no longer, fulfil the conditions for entry, presence or residence in EU territory. This also applies to persons who have lost their right to permanent residence after having entered the EU.

The Agreement lists the documents enabling a person’s nationality or permanent residence to be established. If none of the documents listed can be produced, the competent authority in the Member State wishing to deport the person in question, and the Macao or Hong Kong authorities, interview the person in order to establish their nationality or permanent residence.

Macao and Hong Kong also undertake to readmit persons from other jurisdictions, on condition that the person concerned:

  • holds, when entering the EU, a valid visa or residence permit issued by Macao or Hong Kong; or
  • has entered the territory of a Member State illegally, arriving directly from Macao or Hong Kong.

This obligation does not apply in the following cases:

  • the person in question has only been in transit through an international airport without entering the territory of the Special Administrative Regions;
  • the Member State has issued the person in question with a residence permit or visa the validity of which extends beyond that of the document that the person obtained from Macao or Hong Kong.

The Agreement operates on the basis of full reciprocity, and the same provisions apply to European nationals residing illegally in Macao or Hong Kong and to the nationals of other countries who have been in transit through the EU prior to entering one of the Special Administrative Regions illegally.

Readmission procedure

An application for readmission must be made to Macao or Hong Kong, at the latest one year after the competent authority of the Member State wishing to deport the person has become aware of their unauthorised residence. This period may be extended if there are obstacles preventing the application being made in due time.

A reply must be issued within a maximum of one month, and grounds must be given for all refusals. If a reply is not given within this period, the application is considered to have been approved.

The authorities of the Administrative Region concerned and those of the Member State agree on the date of transfer, point of border crossing and any escort. Return generally takes place by air.

Macao and Hong Kong also undertake to authorise the transit through their territory of persons from other jurisdictions if a Member State makes a request. They may, however, refuse, if the person is likely to be persecuted or to be the subject of prosecution or criminal penalties in another transit country or in the country to which they are being returned.

All transport costs incurred up to the point of border crossing of the final destination State are paid by the Member State that has requested readmission.

Denmark is not a party to these Agreements.

Context

Readmission agreements form part of EU strategy on illegal immigration. Several other agreements concerning readmission have been concluded between the EU and Ukraine, Moldavia, and Georgia, Russia, the countries of the Western Balkans,Sri Lanka, and Pakistan.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Decision 2004/424/EC

21.4.2004

OJ L 143, 30.4.2004

Decision 2004/80/EC

17.12.2003

OJ L 17, 24.1.2004