Session 1 European legal framework relevant for return operations National Training on Escorted Return Operations and Forced-Return Monitoring Mechanisms (FREM III) 09-10 May 2019 Cyprus

European legal framework relevant for return operations MAIN PIECES OF LEGISLATION: • Council Decision 2004/573/EC • Return Directive 2008/115/EC • Return Handbook C(2017) 6505 27.9.2017 write foot text here 2019-05-09 2019 20 19--05 19  05--09                   2

The Council Decision on the organisation of joint flights for removals of third-country nationals (2004/573/EC) “The purpose of this Decision is to coordinate joint removals by air, from two or more Member States, of third-country nationals who are subjects of individual removal orders” § Lays down rules for the organisation of return flights; § Lists specific and common tasks of the authorities organising and participating in a JRO; § Annex to the Decision - the Common Guidelines on security provisions, the health of returnees, the code of conduct for escorts and the use of coercive measures etc.; § Five phases: pre-return, pre-departure, in-flight procedure, transit & arrival phase § Phases slightly differ from the four phases as applicable in this training: pre-departure, in-flight, arrival and return phase. write foot text here 2019-05-09 2019 20 19--05 19  05--09                                           3

Return Directive 2008/115/EC Key features of the Return Directive üFair and transparent procedures for decisions on the return of IMs üObligation to avoid “legal limbo” üGranting a period of voluntary departure üMinimum set of basic rights for IMs üLimitation in the use of coercive measures, ensuring that they are not excessive or disproportionate üProviding for an entry ban valid throughout the EU Article 8 (6) MS to provide for an effective forced-return monitoring system! write foot text here 2019-05-09 2019 20 19--05 19  05--09                                4

Return Directive 2008/115/EC Key definitions & basic guarantees § Illegal stay                           § The best interest of the child § Return                                 § The right to family life § Return decision                        § The state of health of the § Removal                                   third-country national § Risk of absconding                        concerned § Voluntary departure                    § The principle of non- refoulement § Vulnerable persons write foot text here 2019-05-09 2019 20 19--05 19  05--09                                      5

Return Directive 2008/115/EC Return process. Stages No voluntary RETURN       departure time                              REMOVAL DECISION                                                  § Detention § Alternatives – less Voluntary                                                     coercive departure        NON - COMPLIANCE time COMPLIANCE       § Use of force – proportionality                  Postponement of removal principle                                      • Must § Common Guidelines on security                        ü Non-refoulement provisions for joint removals by                    ü Suspensive effect remedies air    annexed             to    Decision      § May – individual circumstances 2004/573/EC.                                        ü Physical/mental capacity End of        § Effective                    forced-return           ü Lack of transport capacity process          monitoring system                                   ü Lack of identification write foot text here 2019-05-09 2019 20 19--05 19  05--09                                                             6

Return Directive 2008/115/EC Return process. Stages • Must RETURN ü No voluntary departure time DECISION ü Non-compliance with the RD within the period for voluntary departure • May – MSs discretion F5 years maximum time limit F Exception - serious threat to public policy, public security, or national security ENTRY BAN write foot text here 2019-05-09 2019 20 19--05 19  05--09                                                7

Return Directive 2008/115/EC Procedural safeguards § Right to be heard before issuing return-related decisions § Return-related decisions to be issued in written form and be reasoned (in an understandable language) § Right to an effective remedy § Right to legal advice, representation, and linguistic assistance write foot text here 2019-05-09 2019 20 19--05 19  05--09                                 8

Return Directive 2008/115/EC Detention and detention conditions § As short as possible § Maximum length is six months - may be prolonged § Pre-removal detention is justified only when: - there is a risk of absconding - the third-country national concerned avoids or hampers the preparation of return or the removal process § Detention of unaccompanied minors and families with minors - only as a measure of last resort and for the shortest appropriate period of time § Detention in specialised facilities is a rule § Particular attention to vulnerable persons § Provision of leisure activities and education for minors § Obligation to provide emergency health care and essential treatment of illness write foot text here 2019-05-09 2019 20 19--05 19  05--09                                      9

The Return Handbook F Provide guidance relating to the performance of duties of MS’ national authorities F Not legally binding F Provides practical commentary and guidance on the implementation of each article of the Return Directive § Chapter 7 – Removal § Chapter 8 – Forced-Return Monitoring § Chapter 9 – Postponement of Removal § Chapter 10 – Return of UAMs § Chapter 12 – Procedural Safeguards write foot text here 2019-05-09 2019 20 19--05 19  05--09                              10