Council of the European Union Brussels, 3 June 2019 (OR. en) 9796/19 LIMITE MIGR 88 COMIX 292 NOTE From: To: Presidency Delegations Subject: Presidency paper on Safeguarding Fundamental Rights Compliance in Return Operations – Effective Forced-Return Monitoring in the EU Delegations will find in annex the above-mentioned Presidency paper to be discussed at the forthcoming IMEX (Expulsion) meeting on 5 June 2019. 9796/19 JV/kl JAI.1 LIMITE 1 EN

ANNEX Safeguarding Fundamental Rights Compliance in Return Operations – Effective Forced-Return Monitoring in the EU – Presidency paper – In the context of forced-return operations, “monitoring” ensures that the return operation is observed in order to report on whether it was conducted in a manner that respects the fundamental rights of the persons concerned, as enshrined in the EU Charter of Fundamental Rights and applicable international human rights law. According to the Return Handbook annexed to the Commission Recommendation C(2017) 6505, forced-return monitoring is an important tool which may serve the interest of both the returnee and the enforcing authorities as an inbuilt control mechanism for national day-to-day return practices. Effective monitoring may help to de-escalate, it allows to quickly identify and correct possible shortcomings and it also protects enforcing authorities by providing unbiased and neutral reporting. The system of forced-return monitoring should be seen from a two-level perspective: a national and a European one. 9796/19 ANNEX JV/kl JAI.1 LIMITE 2 EN

According to Article 8(6) of Directive 2008/115/EC (hereafter called “the Return Directive”), Member States shall provide for an effective forced-return monitoring system. But this piece of legislation does not prescribe in detail how the national forced-return monitoring systems should look like, leaving wide margin of discretion to Member States (MMs) on how to implement the said provision. However, the Return Handbook recommends that monitoring systems should include involvement of organisations/bodies different and independent from the authorities enforcing return. At the same time, Article 28(6) of the Regulation (EU) 2016/1624 on the European Border and Coast Guard (hereafter called “the EBCG Regulation”) establishes that "every return operation shall be monitored in accordance with Article 8(6) of Directive 2008/115/EC […] on the basis of objective and transparent criteria and shall cover the whole return operation from the pre-departure phase until the hand-over of the returnees in the third country of return". It means that every forced-return operation that is coordinated by the Agency and involves technical and operational reinforcement provided by one or more Member States shall be subject to monitoring in accordance with the national rules and modalities transposing Article 8(6) of the Return Directive. Without prejudice to the reporting obligations provided for by national law, forced-return monitors have to report after each operation to the Agency's Executive Director, to the Fundamental Rights Officer (FRO) and to the competent national authorities of all the Member States taking part in the operation. 9796/19 ANNEX JV/kl JAI.1 LIMITE 3 EN

The EBCG Regulation also foresees in this regard the establishment of a pool of forced-return monitors (hereafter called “the Pool”) It is composed of forced-return monitors from competent national forced-return monitoring 1 bodies. return operations upon request by 2 MSs. The monitors from the Pool can be deployed to specific Since January 2017, the Pool is fully operational. The AMIF-funded Forced-Return Monitoring III (FReM III) project, implemented by the International Centre for Migration Policy Development (ICMPD) in cooperation with 22 MSs, Frontex and the EU Agency for Fundamental Rights, supports Frontex to increase the operational and procedural effectiveness of the Pool and to increase the effectiveness of forced-return monitoring in MSs. Prior to the enactment of the EBCG Regulation, the Agency and the FRO have constantly encouraged Member States to enhance the systematic use of their national monitoring bodies in all return operations organised with the support of the Agency. The strengthening of national monitoring mechanisms would have a positive direct impact on the overall capacity to monitor return operations, both at national and European level. 1 2 Ibid. See Article 29(4). 9796/19 ANNEX JV/kl JAI.1 LIMITE 4 EN

Against this background and with a view of exchanging views and best practises on forced return monitoring, the Presidency invites the delegations to express themselves on the following questions: – Do MSs still deem necessary to further reinforce their national forced-return monitoring systems to ensure a more effective, sustainable, fully independent and transparent monitoring of forced returns including an efficient system for reporting and follow-up? – To what extent do the national legal systems in MSs allow common monitoring of Joint Return Operations where forced-return monitors from the Pool would be able to monitor the operation as a whole including all returnees and not only the activities of the requesting MS contingent? – Should the standards for forced-return monitoring be further harmonised at the national and European level and if yes, how this should be done? 9796/19 ANNEX JV/kl JAI.1 LIMITE 5 EN