1. INTRODUCTION.
The FIDH and the FIDH-AE are Human Rights NGOs largely based on local NGO’s participation. The structure of federation assures the contact with the reality on the ground of solid contact and ways of participation. The FIDH-AE and the FIDH work in Human Rights Issues within the EU and out of the EU respectively, representing the Human Rights associations of 115 countries worldwide.
Both organizations promote a Human Rights approach of all the policies and activities of the EU within the territory under jurisdiction of the EU and with all relations establish with third countries.
The Human Rights approach should be considered in order to understand our comments and position to the green paper based on three principal steps well establish among the International Community:
1st step: International Human Rights instruments must be the filter of any policy, legislative instrument, practice or any other act of the States, the organisations founded by the States, the Corporations or any other business entities, and individuals.
2nd step: The Principle of indivisibility and its immediate consequence, the interconnection of all Human Rights already recognized or to be recognized must be taken into account when developing Human Rights Policies or linked policies to Human Rights.
The Commission must acknowledge the universality, indivisibility, interdependence, and interrelatedness of human rights, including the right of development, that entitles every human being and all the peoples to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized.
3rd step: Accountability must be available and enforced by establishing remedies accessible to all the stakeholders, for instance, individuals, States, Corporations and other business entities and NGOs. Remedies shall be established at local, international and regional level to those who suffer, have suffered or could eventually suffer of Human Rights violations, complicity or lack of implementation.
Comments on Part I - "Return as an Integral Part of a Comprehensive Community immigration and Asylum Policy".
2.1. The broader context of return.
The Commission definition of return depends on the status of the person seeking for return, whether this person is legally residing in the EU territory or not is taken into account as a first distinction or sub-division. Persons concerned with return are all third-country nationals (even those born in EU member States without a ius solis way to acquire nationality).
The Commission affirms that " This Green paper focuses on this second category i.e. the return of persons residing illegally in the EU, in its two aspects: forced or voluntary". However, this argument should be reworded, as the Commission, further in the text, maintains that legally residing persons could become illegall residents by loss of their rights, double penalty or other reasons we are looking into below. When assuming the possibility of forced return, no mention of special guarantees is made in the introduction, which does not constitute a human rights approach. A human rights approach should be implemented not only in any particular parts of the Green Paper, but in the whole paper, being used as a filter and a limit to the scope and consequences of the future legal instrument to be adopted.
We recognize the difficulty of this task, but we cannot justify any decrease of the Human Rights standards recognized by international, regional or local legal instruments.
2.2. Immigration and Return.
We ask the Commission to provide a clear definition of the so-called "comprehensive approach" because it seems that the confusion between immigration and asylum is evident once again: "the adoption of common procedures for labor migrants could to a certain extent also reduce pressure on channels for humanitarian admission". Humanitarian admission should not be regarded as an immigration policy or as another way of immigration. We have repeatedly called on the European Institutions to distinguish between Asylum and Immigration, which are narrowly linked but are completely different issues regarding the legal framework as well as the approach we are calling for.
The "practice of regularising illegal immigrants" considered as "markets needs" or as a "reflection on the difficulties of implementing return policies" implies a European policy which is ignorant of the European responsibilities in
the permanent exploitation of the Southern populations and which disregards the debt engaged to them. The right of education, for instance, should be translated by a large welcoming of all Southern students forced to look for an access to education in northern countries.
The universality of human rights implies that every single person is entitled, without discrimination, to the same fundamental rights wherever he or she resides.
In principle, states must respect the individuals and no forced or compulsory action should be taken when there is a conflict of rights, in favor of rights based on economic well being or good administration and in detriment of personal rights. Freedom of movement coming from article 13 of the Universal Declaration on Human Rights should be respected and promoted through all the EU policies.
The Commission proposes that "efficient return policies can encourage potential migrants to prefer to explore the possibilities of obtaining legal residence in the EU and discourage those who do not fulfill the necessary requirements for legal immigration", but there is not a real immigration policy in Europe. The borders are closed for those looking for a place to work or simply establish without fulfilling the so-called necessary requirements.
Methods should be found to promote education and ensure openness toward newcomers, while respecting newcomers and multiculturalism. Newcomers should not be considered as an extension of the labor market without taking into account dignity and the values we are promoting among the members of our society.
2.3. ASYLUM AND IMMIGRATION.
The Commission itself establishes three non-exhaustive conditions for the forced return of persons, rewording the green paper:
1. Benefit from a fair, qualitative and comprehensive procedure,
2. Examination of all protection needs,
3. There is no other ground for a legal stay in a member State.
2.3.1. FAIR, QUALITATIVE AND COMPREHENSIVE PROCEDURE.
Forced measures may be taken only when all guarantees have been respected. All restriction to freedom of movement should be considered to be an exception to human rights and must be justified and legally established by legal instruments submitted to a democratic control. No restriction to fundamental rights should be established by using administrative decrees or equivalent measures.
No one should be denied access to the asylum process; all the information regarding the procedure, the rights and obligations of the candidate must be available in the language of the applicant. The guarantees established by the European Court of Human Rights in its case law regarding article 6 of the ECHR must apply from the early stages of the proceedings independent of the participation of jurisdictional or administrative organs or institutions. Furthermore, article 47 of the Charter of Fundamental Rights establishes the same. This more accurate provision calls for the following measures:
· free access to legal counsel prior to the asylum application,
· free translation services when needed,
· transparency of the administrative proceedings,
· equality of arms,
· legal counsel and/or lawyer freely provided should be experts in Asylum proceedings under International law and under national private law,
· proportionality of requirements as to the means of proof,
· freedom of movement during the procedure,
· housing and/or social benefits during the procedure,
· individual hearings in presence of legal counsel and/or any other person coming from NGO and/or family members living in the host country,
· a copy of any declaration made before the authorities drafted in the mother tongue and joint to the translation in the language of the Host country, should be provided to the applicant,
· that the authority must be versed in asylum and refugee matters, no administrative decision could fix or establish the facts without the possibility of lodging an appeal,
· that the Principle of Independence must be fulfilled by all the authorities, it is narrowly linked to the image the citizens have of the democratic institutions,
· that, in case of doubt, an independent assessment shall be provided,
· that an effective remedy must be available against all decisions,
· that the appeal must have automatic suspensive effect,
· that a reasonable delay shall be respected when coping with appeals, in a double respectful way:
o the person lodging the appeal should have enough time to prepare it and the resolution to the appeal should be made in a reasonable delay
· that no detention or imprisonment should be allowed for asylum seekers in penitentiary establishments
2.3.2. EXAMINATION OF ALL PROTECTION NEEDS.
The examination of all protection needs should take into account the human rights approach discussed above. No need of protection could be exclusively based on civil and political rights at stake, all the internationally recognized Human Rights shall be taken into account when deciding on protection needs.
The violation of social, economic and cultural rights directly implies violation of civil and political rights. These violations of rights could fall into the scope of Geneva Convention or any other instrument of subsidiary or temporary protection. The case of displaced population in China, Colombia or Sri Lanka because of the loss of their right to housing is a good example, which could shed light on the interconnection of Human Rights.
While no duty of monitoring human rights situation in the country of returnees will be established, sending persons to a socially degrading environment would constitute a violation of international standards of protection.
2.3.3. ABSENCE OF OTHER GROUNDS FOR LEGAL STAY.
The Commission further establish an absence of legal grounds for stay in the territory of the member State when the two steps explained in the preceding points have been exhausted without 1) failing to offer a fair, comprehensive and effective procedure and 2) when no need for international protection has been found.
This absence for legal grounds to stay implies that all the member States offer any kind of grounds, at least, to establish directly in their territories even without being an asylum seeker or a person in need for protection. However, the actual state of legislation is far from harmonized on within the EU.
Lack of harmonization drives the Commission to propose a solution, which falls into the scope of discrimination. Discrimination means any distinct treatment given to equal situations or any uniform treatment given to substantially different situations.
Thus, a national from a third State, who has been through a fair procedure and does not need international protection under the international standards applicable in the UE, could be forced to return to her/his country depending on the national legislation. For example, Russians of German origin from Kazakhstan who were displaced after the Second World War, are being authorized to stay in Germany after passing a language test. However, they have no legal ground to stay in Belgium once asylum claims are dismissed and no other need for protection is found or could be proved .
In dealing with such cases, the Commission looks for a wide justification for expulsion or forced return, even putting at stake the right not to be discriminated, a right well established in many legal instruments binding the member States, notably the UDHR, both International Covenants of the International Charter of Human Rights (including the additional protocols), the ECHR and the Charter of Fundamental Rights of the European Union.
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The Green Paper mentions many of the guarantees that must be respected when coping with the ejection or "forced return" of third country nationals, referring to the Charter of fundamental rights and to the case law of the European Court of Human Rights. We assume that the Commission has not voluntarily forgotten the ban of collective expulsion set forth in article 4 of the 4th protocol of the ECHR (P4-4), practiced by any member States . The same reference should be made as to the availability of effective remedies against an expulsion decision .
We call the Commission not to ask NGOs to cooperate to facilitate involuntary return, as far as it violates the Universal Declaration for Human Rights, notably the freedom of movement and establishment.
Basis for a voluntary return can only be established once the will of the person to return has been expressed-considering the situation in his or her country-and once the person is supported and informed by independent local people engaged in the defense and promotion of human rights.
Further in the document, the Commission proposes a list of definitions in coherence with the general aim of the project: close borders and forced return as a basis for a disrespect of a human rights approach as quoted in this document.
The FIDH and the FIDH-AE are not directly answering the questions the Commission has asked the civil society to cope with, but we are rising potential danger for human rights obligations on the member States and, with the accession to the European Convention on Human Rights and other International legal instruments, even on the European Institutions.
The first possible breach on human rights obligations would come from harmonisation of legal standards and guarantees, which all individual on the territory is entitled to. A hypothetical harmonisation as proposed by the Commission in point 3.1 of part II should only be done on the line of the most protective standard being applied within the EU.
Definition of terms proposed by the Commission in the Annex I "Proposed Definitions" could derive in confusion instead in the clarification intended by the drafters. For instance, the non-establishment of clear distinction between situations where the will of the person is taken into account as a basis for any action and the situations where public institutions use force or other compulsory measures to expulse the person. Another example could be seen in the definition of expulsion, which puts at stake the Principle non bis in idem, offering the member States the possibility of throwing out even second generation third country nationals born in the territory of the member State.
The Commission proposes the legalisation of the double punishment forbidden by the ECHR and other International Human Rights Instruments as, for instance, the UDHR, and the ICCPR. We remind the Commission that obligations engaged by the member States under International Law could not be avoid using internal law (European in a first step and national after transposition) as art 27 of the Vienna Convention on the Right of the Treaties establishes.
The reference to terrorist acts, smuggling or trafficking of human beings and other offences against national security, seems to us out of the context of immigration and it is clearly a dangerous reference to criminal law, which is far from being harmonised. This could affect also movements fighting for independentist or regionalist movements within the EU. Furthermore, even the drafting of a list of offences addressed to third country national groups, would contribute to the image the public opinion have on newcomers and immigrants living in the EU territory.
We call the Commission to take knowledge of the recent case law of the ECHR concerning the suspensive effect of appeals lodged against expulsion decisions. The absence of a suspensive effect means absence of effective remedies for the person/asylum-seeker/convicted who is directly going from the prison to the border with an interdiction of re-entry during 10 years.
The FIDH-AE is against all kind of imprisonment of persons who have not committed a criminal offence established by criminal law. The FIDH-AE is also against criminalisation of the immigration of any other person making use of the freedom of movement referred to in the Universal Declaration of Human Rights as well as in other legal instruments : this freedom of movement should be respected without discrimination based on nationality. Special mention should be given in regards to minors, whether accompanied by their respective legal or natural tutors or not. We strongly support the recommendations of Save the Children, as well as the good practice statement created by the Separated Children in Europe Program. For instance, when member States’ administrations decide to imprison a whole family, including minors, in order not to spare the group, the correct decision/optic/politics is to imprison no member of the family. In fact, mobility and the possibility of fleeing from coercitive measures of a whole family is far from what the Commission calls in the Green Paper: "to hinder the illegal resident from absconding before removal".
Another point to mention should be the mutual recognition of the so-called "Return decisions" which could be clearly called forced expulsion measures. The essential question we are coping with here is whether a member State should recognize an expulsion decision of other member State based in a Criminal offence which is not such an offence in the Criminal law of the first member State. The Commission proposes a liberty privative penalty of a year as a basis for a definitive and forced expulsion, but it is well known that harmonisation in substantive criminal law is far from being achieved.
Human Rights supporter always go ahead, they never go back to a less protective standards. Many actors of civil society have raised alarm bells against criminal law harmonisation as a danger of empowerment of more restrictive measures.
The European Association for Human Rights calls the Commission to establish the obligation of all member States to re-accept returnees willing to come back to Europe after an attempt to establish in their countries of origin. Furthermore, a clause should be introduced to monitor the situation of all the returnees regarding human rights in a comprehensive approach, including the social, economical and cultural rights all human beings are entitled to.
Further and deeper comments regarding the Agreements with third countries and other issues will be addressed to the Commission, the European Parliament and the Council.