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2 The (EMN) is an initiative of the European Commission. The EMN has been established via Council Decision 2008/381/EC and is financially supported by the European Union. Its objective is to meet the information needs of Community institutions and of Member States authorities and institutions by providing up-to-date, objective, reliable and comparable information on migration and asylum, with a view to supporting policymaking in the European Union in these areas. The EMN also serves to provide the general public with such information. To that end, the EMN has a network of National Contact Points (NCPs). In Spain, the NCP is composed of experts from four ministries (Ministry of Labour and Immigration, Ministry of Interior, Ministry for Foreign Affairs and Cooperation and Ministry of Justice) and is coordinated by the Permanent Observatory for Immigration, a collegial body attached to the Ministry of Labour and Immigration. The NCP also collaborates with independent experts for the elaboration of EMN studies and reports. Contact Permanent Observatory for Immigration (Co-ordinator of the National Contact Point for the ) José Abascal, Madrid opi@mtin.es This document is available from:

3 Programmes and Strategies Fostering Assisted Return and Reintegration in Third Countries Spain This National Report provides an overview of the programmes and strategies relating to assisted return in Spain. The study examines the experiences promoting assisted return, the obstacles to their implementation and the incentives and motivations for taking part in these programmes. It also evaluates the sustainability of the programmes. This Report has been developed by the Spanish National Contact Point in the. September 2009

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5 INDEX Executive Summary Introduction: Purpose of this study and the methodology used Methodology Definitions, types of returnees and available data Definitions of assisted return Categorisation of migrants who are eligible for return Data on assisted return Forced Return Assisted voluntary return The political and legal framework The political and legal framework in Spain The influence of European policy, legislation and funding General overview of the assisted return measures Motivation for (and perceptions of) assisted voluntary return Obstacles to assisted voluntary return Organisation of the assisted return measures Implementation of assisted voluntary return in Spain Cost of assisted return measures The support procedure for returnees Reintegration and sustaining return Measures for sustaining assisted voluntary return carried out by the Spanish authorities Collaboration programmes with other states Reintegration and resettlement programmes Measures making provision for the return to Spain

6 5.2. The Immigrant Associations The emigrant countries (those receiving returnees) Conclusions Definitions and data The Legal and Political Framework The Assisted Voluntary Return Measures in Spain Reintegration and the Sustainability of Assisted Voluntary Return Annexes Annex I: Sources used to prepare the Spanish report Annex II: Statistical Data Forced Return Assisted voluntary return Annex III: Bilateral agreements

7 Executive Summary This study contains an overview of the programmes and strategies relating to assisted return in Spain, the sustainability of those programmes and the obstacles to their advancement. The study was carried out by reviewing three types of source documents: Official reports, issued for the most part by the European Commission or the Ministry of Labour and Immigration and the Ministry of the Interior in Spain; documents issued by NGOs representing migrants, or which carry out assisted return programmes; and documents produced by the migrants themselves. The importance of these sources differs, and likewise their reliability may, and in some cases does differ. This fact was taken into account when the report was prepared. The report has been divided into four main sections: the first relates to definitions and data; the second analyses the legal and political framework; the third focuses on examining the measures for assisted return; and the final section looks at the subject of reintegration and the sustainability of assisted return. With regard to the definitions and available data, in Spain there are still some deviations from the harmonisation of terms relating to return (whether voluntary or forced), and this has an impact on the quality of the available statistics. These problems are being remedied, both by making the data comply with the new European Regulation 862/2007 (on community statistics on migration and international protection) and the enactment of the new Alien Law 1, which adapts the concepts to the latest legislative amendments at Community level on immigration and asylum. 1 The new Alien Law was approved after the completion of this report and published in the Official Gazette of the Spanish Parliament (Boletín Oficial del Estado, BOE) nº 299 on 12 December. It is entitled 7

8 Notwithstanding this, there is sufficient information to recognise that the annual figures for enforced return have stayed the same and are much higher than those for assisted voluntary return. That said, the latter figures increased in 2008 and 2009 due to the economic crisis, which then gave rise to a new figure for assisted voluntary return. As regards the legal and political framework, it is worth highlighting the efforts made by Spain in the area of forced return to bring its national law into line with European legislation (especially the Return Directive). Indeed, these efforts provoked debate throughout 2008 because the transposition of this Directive into national law involved the tightening of existing measures in Spain for those liable to expulsion. In the context of the provisions of the European Pact on Immigration and Asylum and the Framework Programme on Solidarity, and within it, the European Return Fund, both the current Law on Foreign Persons and the Strategic Plan for Citizenship and Integration expressly recognise and promote voluntary return measures. Furthermore, at the end of 2008, as a result of the country s economic downturn, the Spanish government enacted an additional measure to encourage the return of unemployed foreign nationals by allowing them to receive their unemployment benefit in advance. Although it is up to the State to adopt assisted return measures in Spain, in line with guidelines set by the EU, the programmes are implemented by NGOs through grants and the signing of collaboration agreements. These assisted return measures are implemented through three programmes: the Voluntary Return Programme for Immigrants in Vulnerable Social Situations, the Programme for Assisted Voluntary Return and Reintegration and the Spanish Government s Plan for Voluntary Return for non-eu workers (a programme that allows foreign nationals to be paid unemployment benefits in advance). The first two rely on assistance with the return fare, contingent expenses during the journey and support (which is greater for the reintegration programme) to settle in the return country. The Plan for Voluntary Return makes provision for the accumulated payment in advance of unemployment benefit. In addition, it is possible to apply for assistance for the return journey. In all the programmes, users are given prior information and guidance concerning the return, they receive help in completing the necessary documentation and, where appropriate, follow up steps are taken as soon as the return is complete. Organic Law 4/2000 of 11 January [2000] on the rights and freedoms of foreign nationals in Spain and their social integration, which was amended by Organic Laws 8/2000 of 22 December [2000], 11/2003 of 29 September [2003], 14/2003 of 20 November [2003] and 2/2009 of 12 December [2009]. It came into force on 13 December

9 The authorities and the NGOs who manage these programmes view them positively: as the return is voluntary, this guarantees respect for human rights, and the costs of the process, both financial and emotional, are much lower. Although the number of people using these programmes is relatively low (around 2,000 people a year in 2008 and 2009 in the humanitarian programme and some 5,000 in 2009 for the payment of benefits in advance), a recent increase in applications has been observed. Leaving aside the circumstantial aspects which might have led to this increase, there is a clear need for this type of programmes as another channel in the overall management of migrations. Reintegration and sustained assisted return are complex processes. In point of fact, the Spanish public authorities responsible for these actions have detected significant failings due to the lack of internal resources (both material and manpower) to monitor return and the lack of knowledge about the actual realities of the returnees. On the other hand, some NGOs with experience in this field are beginning to establish an incipient system for organising their know-how by producing reintegration guides. One significant conclusion reached is not just the difficulty of carrying out an exhaustive follow-up, but also substantiating or legitimating such an exhaustive follow-up. In that sense, the most important and effective actions appear to go down the route of helping the returnee to become reintegrated in the social welfare system of the return country, something which requires a great deal of inter-institutional coordination. 1. introduction: purpose of this study and the methodology used In its Working Programme for 2009, the Steering Board of the ENM approved a monographic study on Programmes and Strategies in the EU Member States fostering Assisted Return to and Reintegration in Third Countries. The purpose of this study is to share current knowledge from different member states in order to improve programmes and policies that facilitate the assisted return of asylum seekers whose applications have been rejected or migrants in other circumstances who have decided to return to the their places of origin. This study specifically covers: A general vision for programmes and strategies relating to assisted return in Spain. An examination both of the strategies promoting assisted return and the obstacles to their implementation (and any possible solutions put forward). 9

10 An examination of existing schemes for fostering the sustainability of assisted return. An examination of the incentives and motivations for taking part in programmes for assisted return and reintegration. A review of the evaluation of assisted return programmes and their effectiveness/ sustainability. This study provides a general view of the different practices taking place in Spain in relation to assisted return. As part of a European study, it can also be considered as a step towards improving cooperation and the growth of synergies between member states and towards developing a coherent vision of the best practices being used in Europe, both in relation to assisted return and the scope of the policies on return in general. The results of this study will be directed mainly at those people and entities who are involved in developing policies on assisted return. Specifically: Ministers, politicians and operational officers, both Spanish and those from the EU, who are involved in asylum processes and the control and management of migration flows. This study is aimed at them because they are responsible for harmonising European legislation, producing Spanish laws and devising policies and programmes relating to (assisted) return. Non-governmental organisations dealing with immigrants or asylum seekers. They are the direct beneficiaries of the grants and/or agreements supported by public bodies concerning the direct management of assisted return programmes. Immigrants and/or asylum seekers and their families, as potential beneficiaries of the policies and programmes on assisted return. Public opinion, in that immigration and asylum are issues of general interest Methodology This part explains how the Spanish report was compiled and provides details of the sources used to prepare the report and the methods for collecting and reorganising available information. 10

11 Procedure followed for identifying and selecting the sources used in this report In the area of migration management, as proposed by the European Pact on Immigration and Asylum, there is express encouragement for adopting national measures that support assisted voluntary return, and the European Return Fund provides the economic back-up for these types of measures 2. The manner in which they are devised and implemented in Spain falls to the Ministry of Labour and Immigration, in coordination with the Ministry of the Interior. These two departments have the support of non-profit organisations who implement these measures through grants. In this process, it is also necessary to pay close attention to the immigrants as they are the end beneficiaries in these programmes. The process referred to in the preceding paragraph demarcates the methodology used in this report. For the most part, this methodology involves reviewing secondary sources provided by the three players referred to above: information provided by the relevant ministerial departments, documentation provided by NGOs and web pages containing comments, opinions and news from returnee immigrants. Each one of these sources has a different impact and different objectives, and therefore must be evaluated differently. Information provided by the official bodies shows the development status of the harmonisation process for the common policy on assisted return, the resources provided and the actual measures taken to bring it into being, in line with the existing legal framework. There may be various kinds of documents produced by NGOs, ranging from straightforward news about the programmes to the preparation of a variety of materials on assisted return. Furthermore, the reports from some organisations also contain references to and analysis of policies on assisted return and the implementation of the common European policy on immigration. When considering these types of documents, it is necessary to bear in mind that they were created in line with the ideological perspective of each organisation. Finally, as a source of additional information, account has been taken of the impressions of the migrants who benefited from the programmes. However, it is important to remember that these must be treated as subjective opinions, in that they concern the communication of personal experiences. 2 This is dealt with in detail in Section 3.2 of the European Pact on Immigration and Asylum. 11

12 Summary of the type of sources of information used These three sources are examined below in accordance with the type of information they provide. 3 Source Type of Information Public bodies: European Commission Ministry of the Interior Ministry of Labour and Immigration NGOs 3 Return legislation Framework Programme on Solidarity and Management of Migration Flows European Return Fund Monographic Study on Return Migration 2006 Annual Policy Report 2006 and 2007 Annual Statistics Report 2006 and 2007 Glossary of terms Report on the Multi-annual Programme of the European Return Fund Annual Report of the European Return Fund Statistics on apprehensions and removals Overviews of the fight against illegal immigration Documentation on assisted voluntary return programmes Statistics on the number and features of the assisted voluntary return programmes Monographic study of the labour market, including a chapter dealing specifically with assisted voluntary return Annual reports (relating to return legislation and resulting issues) Information on assisted voluntary return programmes Monographic studies on assisted voluntary return Guides and various documentation on assisted voluntary return Some statistics Immigrants Information pages and comments on the assisted return programmes 3 Among those managing return programmes, there are inter-governmental organisations, (IOM), traditional NGOs (Cáritas, Red Cross, Accem), NGDOs (AESCO), mixed organisations of immigrants and Spanish people (ACOBE) and immigrant organisations (FEDROM). Section 4.3 provides full details on these organisations. Moreover, in section 3.1, relating to the political debate, reference is made to the reports of some organisations, in which issues relating to the policies on voluntary and forced return are discussed. 12

13 Organisations or institutions contacted in order to obtain relevant information The majority of the organisations and institutions referred to under the previous heading in this section have web pages in which they provide detailed, relevant, up-to-date information on policies, programmes and procedures on assisted return. However, in any specific scenario, discrepancies have been detected (either in the data provided, or the terminology adopted) between the different sources. In these circumstances, the organisation providing the information has been consulted 4. Problems encountered in preparing the report The two most significant problems when compiling the information needed for this study were the following: In Spain, terms relating to both voluntary and forced return have still not been harmonised. This fact may be due, on the one hand, to the terms used in Spain s current rules on foreign persons, and, on the other, to a possible muddled translation into Spanish of some directives and regulations. It is expected that these problems will be remedied with the next reform of the Law on Foreign Persons and the implementation of Regulation (EC) 862/2007 of the European Parliament and of the Council on Community statistics on migration and international protection. The information on users of the different programmes on assisted return (both voluntary and forced) is scant, fragmented and appears to be added on. There are detailed data based on nationality and place of return, but not on gender, age or civil status. Reservations or caveats to consider in relation to the results of the study Apart from what has been stated in connection with statistical sources, there are no limitations, reservations or caveats which need to be taken into account when interpreting the data or results from this study. 4 This relates specifically to items for which statistics on both forced and assisted voluntary return are drawn up. Given that different departments in the Ministry of Labour and Immigration and the Ministry of the Interior are responsible for compiling the relevant data, the heads of department were consulted directly. 13

14 2. Definitions, types of returnees and available data 2.1. Definitions of assisted return The terms set out below are used in this report. In part IV of the specifications for drawing up this report, it is expressly stated that the terms from the EMN Glossary must be used. In that regard, as a preliminary step to examining the issue of assisted return, we consider it relevant to refer to the concept of voluntary return. For the purposes of this report, we consider that voluntary return 5 includes those situations which may come within the following scenarios: A third-country national, legally resident in Spain, who departs for a third country of his/her own volition and there is no obligation for them to leave. (Voluntary return in the EMN Glossary). A third country national, illegally resident in Spain, who departs for a third country before being detected or notified by the authorities. A third country national, illegally resident in Spain, against whom an expulsion order is made, and who decides to comply voluntarily with the obligation to leave the country (voluntary departure, using the terminology of the Return Directive). Assisted voluntary return means the provision of logistical, financial and/or material assistance for the voluntary return of people who take up the offer. This term therefore has a narrow definition of the term voluntary return. Often the financial support is given by the Member State (in this case Spain), either directly or through subsidised organisations. An additional source of financing for this type of programme is the European Return Fund, which will be dealt with in section 3.2. In this report we will examine the programmes and policies relating to this definition of assisted voluntary return. 5 Following the literal definition given in the EMN Glossary, return shall mean the movement of a person returning to his/her country of origin, country of nationality or habitual residence, usually after spending a significant period of time in another country. This return may or may not be voluntary. As regards voluntary return, this is defined as the process of assisted or independent departure to the country of origin, transit or another third country, based on the consent of the returnee. 14

15 Clarification of some terminology relating to the concepts contained in this report Currently there are three categories which could lead to a foreign national being sent to his/her country of origin. Refusal of entry: this includes data relating to refusals made at all of the country s borders, including data from Ceuta and Melilla. Apprehensions: this includes data on the removal proceedings initiated and the number of persons apprehended based on the scenarios covered by the current law on foreign nationals, as well as those that have breached an exclusion order and have been located in Spanish territory. Removals: before the new Regulation 862/2007 on statistics comes into force, the data on this item relates to the number of removals. In summary, assuming that a return involves a lengthy stay beforehand in the host country, for the purposes of this report, those people who have been denied entry because they were turned down at a border post are excluded from the category of possible returnees Categorisation of migrants who are eligible for return This section describes the different groups of nationals from third countries who may be comprehensively included in the range of policies on (forced and voluntary) assisted return. The following categories fall within the definition forced return (Section 28 of the Spanish Alien law): Those who are subject to a court order under the Criminal Code. Those who are subject to an administrative expulsion order. Those whose application to work permit renewal has been refused. Those who do not have permission to be in Spain. In addition, the new legislation on foreign persons, although still not in force, adds the requirement to comply with the deadline by which a foreign worker undertook to return to his/her country of origin as part of a voluntary return programme. 15

16 As regards assisted voluntary return, there are three separate arrangements 6 : On humanitarian grounds. The beneficiaries are expected to be foreign persons (not belonging to the EU), regardless of their legal status, who, for different reasons, declare a wish to return to their country. This group covers refugees, displaced persons, asylum seekers, persons under the protection of the State for humanitarian reasons and illegal immigrants or immigrants with residence and/or work permits. These individuals must also meet the following requirements: they must be in a socially vulnerable situation and have remained in Spain for more than six months. Reintegration in the country of origin. This concerns people who wish to return to their country to carry on a sustainable economic activity. We are referring to individuals with entrepreneurial skills and a knowledge of the local environment, as the programme requires the presentation of a business plan and an economic feasibility study. Unemployed, non-community workers. This arrangement is aimed at benefiting foreign, unemployed workers who are nationals from one of the countries with which Spain has entered into a bilateral social security agreement Data on assisted return In Spain, the issue of assisted return is relatively recent. Indeed, the first comprehensive programme for assisted voluntary return dates from The arrangement for unemployed, non-community workers began in November Moreover, as was stated in section 2.1, our legal system still uses some terms which have not yet been harmonised, and which may cause certain difficulties in the examination of existing data on return, as defined by the EMN. These facts explain why Spanish statistics on assisted return, whether voluntary or forced, are still at the embryonic stage. With the exception of the Plan for Voluntary Return (aimed at unemployed workers from certain specific countries), the statistics do not make a distinction in relation to 6 This will be examined in detail in section 4 of this report. 7 Section 4.3 of this report provides a detailed description of this programme and has a complete list of these countries. 8 Although the first programme of this type, with Bosnian refugees, was set up in 1996, the model programme for governmental voluntary return was implemented in 1999; it was managed by the IOM (the International Organisation for Migrations), the Spanish Red Cross and the then IMSERSO (Institute for Migrations and Social Services). 16

17 the personal circumstances of returnees (whether they are legal or illegal immigrants, asylum seekers whose application has been refused, etc.). There are no data on the demographic characteristics of returnees (gender, age, status, or type of employment). There are disaggregated data on nationality in cases of apprehensions and removals, forced return and assisted voluntary return under the three separate arrangements. As for the country where the returnee is being sent, in cases of assisted voluntary return, the return country is the same as the country of nationality, save for rare exceptions. The following table summarises the statistics that will be analysed below. Type of assisted return Forced Voluntary Statistic (annual) Available variables Responsible body Apprehensions Removals Nationality Nationality Ministry of the Interior (Directorate General for the Police and the Civil Guard) On humanitarian grounds 9 Unemployment benefit in advance Nationality (and country of return) Status of the applicant Nationality (and country of return) Ministry of Labour and Immigration (Dir. Gen. for Integration of Immigrants) There now follows an analysis of the figures in Spain on forced and voluntary return for the period The tables of data are contained in the Annex Forced Return The statistics on departures of foreign nationals from Spain are prepared by the General Commissariat for Foreign Nationals and Borders (CGEF) through the Central Statistics Department of the General Secretariat. 9 To date, there are no disaggregated statistics on programmes for assisted voluntary return and reintegration. 17

18 As regards sending foreign nationals to their countries of origin, the following statistics were used: Apprehensions: Data on the removal proceedings initiated and the number of persons apprehended based on the scenarios covered by the current alien law, as well as those who have breached an exclusion order and have been located in Spanish territory. Removals: Number of removals. These include readmissions of nationals from third countries, readmissions accepted by France and Portugal, in accordance with the Readmission Agreements, removals and voluntary departures 10. Apprehensions In 2007, 72,559 people illegally resident in Spain were apprehended, a reduction when compared with the apprehensions made in 2006, when the figure reached 95,765. It is clear that 2006 was an exceptional year in the four year period when the average figure was around 70,000 apprehensions a year. The majority of foreign nationals apprehended in Spain continue to be Moroccans (18,204, or 25%). With regard to the previous year, only Bolivians and Brazilians rose three places to second and third place respectively and are growing in the numbers of apprehensions (with 10,623 and 5,916 respectively), along with countries which appeared among the main nationalities in 2007, namely Paraguay (1,908) and Colombia (1,341). There was a fall in the number of apprehensions in the other countries, including Morocco, which was in first place: Algeria (with 4,212 in 2007), Gambia (with 2,307) and Mali (with 1,404). Senegal had a significant reduction, from 16,224 apprehensions in 2006 to 3,984 in Removals In the last 10 years, the numbers of foreign nationals expelled for various reasons have not undergone significant variations, with slight increases being recorded until As with apprehensions, 2006 was an exceptional year, producing 33,235 expulsions, compared with 25,443 in 2007, down 23.4%. The average over the last 10 years is around 26,000 expulsions a year. 10 These voluntary departures are based on an administrative measure which imposes an obligation to leave the country, and so, in the end, the actual departure is under the control of the authorities. 18

19 The nationalities of the expelled foreign nationals in 2007 are the same as 2006, save that Romania and Bulgaria are no longer present (due to their joining the EU 27), leaving space for the Russian Federation and Pakistan (seventh and eighth, with 362 and 324 expulsions). The other countries stayed in the same positions as in 2006, except for Bolivia and Mali, which changed places. Thus, Morocco continues to be the country with the most expulsions (13,820, down from 2006, albeit with a higher percentage in relation to total expulsions), followed by Senegal, Algeria, Brazil, Bolivia, Mali, the Russian Federation, Pakistan, Colombia and Ecuador. Of all these, only Brazil and Bolivia received more expelled nationals than in Assisted voluntary return On humanitarian grounds With regard to the humanitarian programme for assisted voluntary return, data are available based on year and nationality; the latter in turn coincides with the country of return. Similarly, there are data on the status of the applicants, with immigrants and asylum seekers being distinguished. Until 3 December 2009, 10,220 people were returned; a total of 6,671 between 2003 and 2008 (inclusive) and 3,549 (more than the half of the combined total for the preceding years) in the first 11 months of The considerable increase in assisted return, which are still down in absolute terms, could lead to the conclusion that there is a causal link between these figures and the economic situation. Undoubtedly, the hostile environment influenced the increase in situations of vulnerability which allow foreign nationals to take advantage of these programmes. As for the status of the programme users (immigrants and refugees), for the most part, they are immigrants, approximately 95% every year, with the exception of 2008 when the percentage dropped to 82%, i.e. in that year 18% of them were refugees. In terms of nationalities, the most numerous group of people included in this assisted return programme are Bolivians. They are followed by Argentineans, Brazilians, Colombians and Ecuadorians, and after them there are other Latin American groups, such as Uruguayans, Chileans, Hondurans, etc. Apart from Latin Americans, the only group that stands out are the Rumanians, who occupy ninth place in relation to returned persons between 2003 and Hardly any sub-saharan Africans or Asians applied. 19

20 Plan for Voluntary Return for unemployed workers With regard to this Plan (a programme for the payment in advance of unemployment benefit to foreign nationals), the most recent data available are from 30 November 2009, by which time 9,114 unemployed people had applied to the programme. Of the total amount of applications made, 6,767, or 74%, had been granted by that date. Another 398 had been refused, 1,763 (19% of the total) were withdrawn or discontinued and the remainder (186) are still being processed. In terms of nationalities, more than 43% of the total applications were from Ecuadorians, while the other groups of note were Colombians (18%), Argentineans (10%), Peruvians (8%) and Brazilians (5%). 3. The political and legal framework 3.1. The political and legal framework in Spain This section provides a review of the political debate relating to assisted return, although it also examines the issue of forced return. It also contains information on the political and legislative changes that have taken place (or which will take place in the near future) and which influence (or which will influence) the regulation of migration and/or asylum. Finally, it examines the details of the legal framework for assisted return. The political debate on assisted return in Spain is currently focussed on two issues: the first relates to forced return and the second to assisted voluntary return. 1. Forced Return: the European Parliament s approval of Directive 2008/115/EC on standards and procedures in member states for returning illegally staying third country nationals. The text of the so-called Return Directive (and its imminent implementation in Spanish law 11 ) has led to differences between the Government, certain opposition groups and non-governmental organisations. The following parts of the directive have caused the most controversy 12 : 11 As is explained in paragraph 3.2, the transposition of this directive will take place at the same time the new reform of the Alien Law comes into force, expected at the end of CEAR (the Spanish Commission for Refugee Aid) (2009) 2009 Report. Available on php?section=88. We consider that the CEAR report reliably reflects the sentiment of numerous organisations 20

21 Internment of migrants prior to their expulsion, as they are deprived of their liberty because of a minor administrative offence. Internment for up to 18 months, much higher than the 40 day period under current national legislation. Authorisation of the internment of unaccompanied minors. The possibility of being expelled to a third country, other than the country of origin or nationality. 2. Assisted voluntary return: the measure introduced by the Spanish government for advancing unemployment benefit (Royal Legislative Decree on the payment of accumulated unemployment benefit in advance and Royal Decree 1800/2008 through which it was subsequently implemented). This concerns the so-called Plan for Voluntary Return, which allows for the advanced or accumulated payment of unemployment benefits to foreign, non-community workers who voluntarily return to their countries of origin. The Spanish Government insists that this measure increases opportunities for those who cannot achieve them in Spain. Although it is still too early to see the results of this programme (it did not come into force until November 2008), at present the number of foreign nationals who have applied for this is low. In early September 2009, the number of individuals who applied for this measure was just over 5,000, the majority of whom were Latin Americans. This Plan has received a number of criticisms, for example concerning the lack of planning with which this measure was devised, insufficient funding and the fact that migrants would find themselves in a worse situation in their countries of origin 13. In Spain, the legal framework currently in force for assisted voluntary return is as follows: who have described the directive as shameful. We can mention Cáritas, the Ignacio Ellacuría Foundation, the Assembly of Social Movements, the European Trade Union Confederation, Amnesty International and Save the Children, among others. The 2009 report from the Spanish anti-racist organisation, SOS Racismo, made similar pronouncements, both in relation to the return directive and the Plan for Voluntary Return. 13 See, for example, the article from Sami Naïr, El fracaso del retorno voluntario de inmigrantes (Failure of the voluntary return of immigrants) in the Spanish newspaper El País on 25/07/2009 or El difícil retorno de los inmigrantes (Difficulties faced by returning immigrants), published in La Vanguardia on 28/07/2009. The CEAR report for 2009 can also be consulted. 21

22 1. Alien Law 14 : The eighth additional provision of the current Alien Law s states that the government will make yearly financial provision for voluntary return programmes for people who apply and who propose projects for their relocation in the society which they left, provided always that the projects are of use to that community. 2. Strategic Plan for Citizenship and Integration (PECI). Its programme, COD 6.2, refers to a specific measure supporting programmes for the voluntary return of immigrants so that productive projects in the country of origin can be implemented. 3. Plan for Voluntary Return for non-eu workers 15. Royal Legislative Decree 4/2008 allows for the advanced or accumulated payment of unemployment benefits to foreign, non-community workers who voluntarily return to their countries of origin. 4. The Resolution of 23 October 2008 of the Directorate General for the Integration of Immigrants, which announced the provision of grants for the voluntary return of immigrants. It announced that grants would be made available in the area of the integration of immigrants, asylum seekers and other people with international protection for the year 2008 in order to implement the programmes for the voluntary return of immigrants. 5. The Resolution of 24 August 2009 of the Directorate General for the Integration of Immigrants, which announced the provision of grants for the voluntary return of immigrants. With regard to the changes that could influence the implementation of policies on immigration and asylum, the imminent reform of the Alien Law, currently going through the Spanish Parliament, stands out 16. Although this will be covered in more depth in section 3.2, it should be pointed out here that the main changes to Spain s migration policy will be as a result of adapting that policy to the common migration policy under the guidelines of the European Pact on Migration and Asylum 2008 and the Return Directive. 14 This concerns Organic Law 4/2000 of 11 January [2000] on the rights and freedoms of foreign nationals in Spain and their social integration, which was amended by Organic Laws 8/2000 of 22 December [2000], 11/2003 of 29 September [2003] and 14/2003 of 20 November [2003]. The last of these from 2003 expressly establishes the issue of assisted voluntary return, and it also transposes Directive 14/ The above mentioned Royal Legislative Decree 4/2008, on the payment in advance of accumulated unemployment benefit and Royal Decree 1800/2008 through which it will subsequently be implemented. 16 The Bill for Organic Law 4/2000, of 11 January 2000 on the rights and freedoms of foreign nationals in Spain and their social integration. Published in the Official Gazette of the Spanish Parliament on 1 July 2009, it is expected to be approved before the end of the year. 22

23 3.2. The influence of European policy, legislation and funding This section examines the impact which the implementation of the EU s policy on return (in all its forms) has had on Spain s legislative framework, especially in the context of the European Pact on Immigration and Asylum. It also explains the consequences of transposing Directive 2001/40 on the mutual recognition of decisions on the expulsion of third country nationals, Directive 2003/110 on assistance in cases of transit for the purposes of removal by air and Council Decision 575/2007 setting up the European Return Fund for the period as part of the General Programme for Solidarity and Management of Migration Flows. In addition, the foreseeable influence which Directive 2008/115 on standards and procedures in member states for returning illegally staying third country nationals will also be examined. It will also deal with Spain s experience of implementing readmission agreements and those actions relating assisted return before the European Return Fund took effect. Influence in Spain of the return policy proposed by the EU The European Pact on Immigration and Asylum of October 2008 represents the consensus of member states on how to deal with migration issues into the EU. This consensus makes sense in that the absence of internal borders means that the decisions of one state on immigration could affect the others. The Pact has five parts 17, and the issue of return is dealt with in the section relating to how illegal immigration is handled. Specifically (in Part II), the member states are invited to set up provisions to assist voluntary return. In the same way, the Framework Programme on Solidarity and the Management of Migration Flows , uses its four mechanisms for financial solidarity 18 to deal with the forced and voluntary return of nationals from third countries who are legally or illegally resident in the EU through the creation the European Return Fund. The Fund was created through Decision Nº 575/2007 of the Council of 23 May Organising legal immigration, combating illegal immigration, strengthening the effectiveness of border controls, building a Europe of asylum and encouraging synergies between migration and development with the countries of origin and transit. 18 The Framework Programme encourages equal division among Member States of the responsibilities arising out of the integrated management of borders and the implementation of policies on asylum and immigration. There are four solidarity mechanisms. In addition to the European Return Fund, the other three are: the integrated management of external borders (European Fund for External Borders), the integration of legal immigrants (European Integration Fund) and asylum (European Refugee Fund). 23

24 The purpose of the European Return Fund is to support the efforts of Member States to improve the management of all aspects of return. With regard to assisted voluntary return, the beneficiaries of this fund s activities are nationals from third countries who wish to return to their places of origin regardless of their legal status. It also includes asylum seekers whose applications have not been turned down. For the period , the Fund has a total bursary of 676 million, of which 25.3 million (3.75%) will be set aside for voluntary return activities in Spain. In addition, the Spanish state is financing measures costing an equivalent of 25% of the amount contributed by the EU (just over 8.4 million in total). In Spain, the authority responsible for the Fund is the Ministry of the Interior. Therefore, it is this department which carries out the multi-annual allocation of the resources received. However, the Ministry of Labour and Immigration is responsible for the management, control and monitoring of assisted return programmes 19. In this way, on issues relating to assisted return, the Ministry of Labour and Immigration acts through the Directorate General for the Integration of Immigrants as the delegated body. The Fund finances four kinds of projects: 1. Development of a strategic approach to return. 2. Cooperation between member states on managing return. 3. Creating specific national and international innovative tools to manage return. 4. Supporting community standards and good practices to manage return. Of those four, the Spanish authorities have selected items one, three and four for the period This can be seen in detail in the multi-annual programme for managing Fund resources for the five year period , drawn up by the Ministry of the Interior 20. In addition, the Ministry is due to introduce an annual programme providing details of the projects carried out, the cost of each one and the percentages financed by the Commission and by Spain. For 2008, only activities under items one and three were carried out. 19 Pursuant to Royal Decree 1600/2004 of 2 July 2004, which creates the basic, organic structure of the Ministry of Labour and Social Affairs, as amended subsequently by Royal Decree 438/2008, which provided for the Ministry s change of name to the Ministry of Labour and Immigration. 20 Full details on the activities of the Ministry of the Interior can be found on DGIMS/Programa_Solidaridad/Fondo_Europeo_Retorno/. Information on voluntary return can also be found on the web site of the Ministry of Labour and Immigration Fondo_Solidaridad/FONDO_RETORNO/index.htm 24

25 Implementation of relevant European Legislation The various directives on European immigration law have been and are being transposed into Spanish Alien Law. Thus Directive 2001/40 on the mutual recognition of decisions on the expulsion of third country nationals is transposed through Organic Law 14/2003 of 20 November 2003, which amends the Alien Law This meant amending Spanish rules on the implementation of expulsion orders made by the Member States of the European Union. The implementation of Decision Nº 575/2007 of the Council on the creation of the European Return Fund has been mentioned above in section 3.2 under the heading Influence in Spain of the return policy proposed by the EU. As for the transposition of Directive 2003/110 on assistance in cases of transit for the purposes of removal by air 21 and the above mentioned Directive 2008/115 on return, these are dealt with by the Aliens Bill (still awaiting approval by the Spanish Parliament). As is set out in its statement of reasons, one of the objectives of the reform is to strengthen the procedures for returning foreign nationals who have illegally entered our country. Thus Title III of the Law introduces certain amendments to give greater effectiveness and more guarantees to measures on suspension and refusal of entry. The detention period is extended from 40 to 60 days and a time limit for voluntary compliance with expulsion orders is set. The re-admission agreements which the General Commissariat for Foreign Nationals and Borders has concluded with the main countries of origin and transit are examined below. The attached Annex contains a summary of the agreements currently in force (Algeria, Bulgaria, Colombia, Estonia, France, Italy, Latvia, Lithuania, Poland, Portugal, Rumania, Switzerland, Liechtenstein, Macedonia and Cape Verde) and those which are being implemented provisionally (Guinea Bissau, Morocco, Mauritania, Ecuador, Dominican Rep., Gambia, Guinea and Peru), together with information on their duration and the degree of actual cooperation from the authorities in those countries. In addition, there are a number of agreements, still not in force, which are being implemented to a greater or less degree (Ghana, Nigeria, Bosnia-Herzegovina and Mali). The Ministry of the Interior itself has highlighted that up to now agreements with sub- Saharan African countries have had little effect 22. For this reason, the Spanish government 21 In this regard, it should be pointed out that on 14 February 2008 Spain was condemned by the ECJ (judgment in case C-58/07) for having failed to transpose Directive 2003/110 on immigration and removals. The Court dismissed the arguments adduced by Spain, which specifically focussed on the need to reform its legislation on foreign nationals. This reform, as has been repeatedly stated in this report, is about to come into force. 22 In the report relating to the Multi-annual Programme for the Programme on Solidarity and the Management of Migration Flows for the European Return Fund, referred to above. 25

26 has devised a new model of bilateral agreement which seeks to implement the Global Approach to Migration. These are the so-called new generation agreements 23. Up to now, Mali, Cape Verde, Cameroon, Guinea, Liberia, Sierra Leone, Niger, Guinea Bissau, Senegal and Gambia have expressed a willingness to enter into new generation agreements with Spain. Finally, in relation to assisted voluntary return activities carried out before the current European Return Fund was set up, it should be pointed out that in Spain the outcome of the financing of assisted voluntary return activities involved ad hoc actions and, numerically speaking, they are of no relevance. 4. general overview of the assisted return measures This section will firstly examine who the entities responsible for bringing about assisted return policies are, and secondly the manner in which they are implemented in Spain. It will also identify the groups who benefit from these measures and their perceptions of those measures. The section also touches on the campaigns and measures for promoting assisted voluntary return, costs and the amount of those costs in comparison to those of enforced return. Finally there is an examination of the monitoring and evaluation procedures for assisted return measures. In order to carry out the analysis of these points, the section has been divided into three parts: Motivation for and perceptions of assisted voluntary return Barriers to the implementation of assisted return measures Structure of the system for assisted return in Spain 4.1. Motivation for (and perceptions of) assisted voluntary return This section describes the motivations which the different players involved in assisted voluntary return encounter in order to motivate, implement or benefit from the 23 These agreements cover matters such as the control of illegal immigration, combating human trafficking, technical assistance to strengthen the institutions responsible for matters relating to migration, legal immigration, integration, return and co-development. 26