COUNCIL RECOMMENDATION

of 22 December 1995

on harmonizing means of combating illegal immigration and illegal employment and improving the relevant means of control

(96/C 5/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular K.3 (2) thereof,

Having regard to the initiative submitted by the French Republic on 22 December 1994,

Having regard to the recommendation of the Ministers of the Member States of the European Communities with responsibility for immigration of 1 June 1993 concerning checks on, and expulsion of, third-country nationals residing or working without authorization,

Having regard to the recommendation of the Ministers of the Member States of the European Communities with responsibility for immigration of 30 November 1992 regarding practices followed by Member States on expulsion,

Whereas, pursuant to Article K.1 (2) and (3) of the EC Treaty, policy regarding nationals of third countries and in particular combating unauthorized immigration, residence and work are matters of common interest and therefore fall within the areas for cooperation between Member States referred to in Title VI of the Treaty;

Whereas the Member States, faced with an increase in illegal immigration, have already adopted specific measures to ensure better control of population flows and to avoid the continued unlawful presence in their territories of foreign nationals who have entered or are residing without authorization;

Whereas, however, the efficiency of that action implies the implementation of coordinated and consistent measures;

Whereas, although recommendations laying down guiding principles for practice with regard to expulsion have already been adopted, that effort at alignment needs to be reinforced by recommending Member States to comply with a number of principles designed to ensure a better check on the situation of foreign nationals present within their territories;

Whereas this recommendation is in keeping with Community legislation, the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, and in particular Articles 3 and 14 thereof, and the Geneva Convention of 28 July 1951 relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967,

HEREBY RECOMMENDS Member States to harmonize further the means for checking on foreign nationals to verify that they fulfil the conditions laid down by the rules applicable to entry, residence and employment on the basis of the following guidelines:

1. This recommendation does not extend to citizens of the European Union or to nationals of EFTA member countries party to the Agreement on the European Economic Area, or to members of their families entitled under Community law.

2. Where an identity check is carried out on a foreigner in accordance with national law, at least where a person appears to be residing in the country unlawfully, his residence situation should be verified. This may apply in particular in the following cases:

- identity checks in connection with the investigation or prosecution of offences,

- identity checks to ward off threats to public order or security,

- identity checks in order to combat illegal entry or residence in certain areas (e.g. frontier areas and ports, airports and railways stations handling international traffic), without prejudice to border controls.

3. Third-country nationals should be in a position, according to national law, to present to the competent authorities confirmation, for example by way of papers or documents by virtue of which they are so authorized, of their authority to reside within the territory of the Member State where they are.

4. Where national law regards the residence or employment situation as a prerequisite for foreign nationals to qualify for benefits provided by a public service of a Member State in particular in the area of health, retirement, family or work, that condition cannot be met until it has been verified that the residence and employment situation of the person concerned and his or her family does not disqualify them from the benefit. Verification of residence or employment status is not required where intervention by a public authority is necessary on overriding humanitarian grounds.

Such verifications are carried out by the services providing the benefits, with the assistance, if necessary, of the authorities responsible in particular for issuing residence or work permits, in accordance with national law relating, in particular, to data protection.

Member States should inform the central or local authorities responsible for dispensing benefits to foreign nationals of the importance of combating illegal immigration in order to encourage them to report to the competent authorities, in accordance with national law, such cases of breaches of the residence rules as they may detect in the course of their work.

The attention of the authorities responsible for issuing residence permits should also be drawn to the risk of marriages of convenience.

5. Employers wishing to recruit foreign nationals should be encouraged to verify that their residence or employment situations are in order by requiring them to present the document(s) by virtue of which they are authorized to reside and work in the Member State concerned. Member States could stipulate that employers may, if necessary, under the conditions laid down by national law relating, in particular, to data protection, check with the authorities responsible in particular for issuing residence and work permits; the said authorities may communicate the relevant information under procedures which guarantee confidentiality in the transmission of individual data.

6. Any person who is considered, under the national law of the Member State concerned, to be employing a foreign national who does not have authorization should be made subject to appropriate penalties.

7. The authorities competent to authorize residence should be empowered to take measures to check that persons who have been refused authorization to reside within the territory of the Member State have left that territory of their own accord.

8. Each Member State should consider setting up a central file of foreign nationals containing information on the administrative situation of foreign nationals with regard to residence, including any refusal of authorization to reside and any expulsion measures. Any file thus set up will operate in compliance with the standards laid down in Council of Europe Convention 108 of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data.

9. Member States should satisfy themselves that residence documents issued to foreign nationals are adequately secured against forgery and fraudulent use - particularly by colour photocopying - and, should, if necessary, amend them accordingly.

10. Member States should take the measures necessary to reinforce and improve means of identifying foreign nationals who are not in a lawful position and who have no travel documents or other documents by which they can be identified.

Where a foreign national who is not in a lawful position is, or is likely to be, detained under the circumstances provided for in Chapter II of the recommendation of 30 November 1992 of the Ministers of the Member States of the European Communities with responsibility for immigration regarding practices followed by Member States on expulsion, the period of detention should be used in particular to obtain the necessary travel documents for expelling foreign nationals who have no documents. The consular authorities of the country of origin or the country of the nationality of the foreign national concerned should be encouraged to make additional identification efforts to obtain travel documents.

Foreign nationals who have deliberately brought about their illegal position, particularly by refusing to supply travel documents, should be subject to penalties. In appropriate cases, such penalties may fall under criminal law.

Member States will review the follow-up to Chapter III.2 of the recommendation of 30 November 1992 of the Ministers of the Member States of the European Communities with responsibility for immigration regarding practices followed by Member States on expulsion.

The Council will review regularly, for example once a year, the progress made on harmonization in the fields covered by this recommendation.

Done at Brussels, 22 December 1995.

For the Council

The President

L. ATIENZA SERNA