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The EU Parliament Amends the Commission Directive Proposal on
Return
On 12th September 2006, the Civil Liberties Committee (LIBE)
of the European Parliament voted over 200 binding amendments to
a Commission Directive proposal laying down common standards for
returning illegally staying third-country nationals.
The draft directive is the first EU attempt to harmonise the
legislation of the 27 Member States. It promotes the principle
of voluntary return by establishing a general rule that a
"period for departure" should normally be granted. MEPs stressed
that such period should be of "at least 4 weeks".
A longer detention period
However, prior to their removal, third-country nationals may be
detained by Member States "in specialised temporary custody
facilities". Following tough negotiations, MEPs finally agreed
to fix "a period of three months after which temporary custody
shall cease to be justified". Yet Member States may shorten or
extend this period by "up to 18 months in cases in which in
spite of all reasonable efforts, the removal operation is likely
to last longer due to lack of co-operation on the part of the
third-country national concerned or due to delays in obtaining
the necessary documentation from third countries or if the
person concerned represents a proven threat to public security".
This paragraph amends the Commission's initial proposal, which
was for a fixed maximum period of 6 months.
JRS welcomes the three-month duration of detention. It regrets
however that this initial period may be extended to one year and
half. Regarding the side effects of detention on the physical
and mental health of third-country nationals, this period
appears to be excessive. Moreover, the cases in which the
detention period may be extended up to one year and half can be
broadly interpreted by Member States. The reference made to the
"threat to public security" may lead in practice to widespread
detention. Similarly, third-country nationals should not be penalised because of the "lack of cooperation" of their country
of origin. In their cases, alternatives measures to detention
should be promoted. In particular, JRS advocates for granting
people who cannot be removed for technical reasons, independent
from their will, with a temporary residence permit which would
allow them to live properly without being a burden for the host
society. This temporary residence permit might be given for a
period of two of three years, renewable one time. If, at the
end, the conditions to remove these persons are not met yet,
they should be eligible to the long- term residence permit as
defined by the EU legislation.
Unaccompanied minors should not be detained
On the other hand, MEPs decided that "unaccompanied minors
should not be removed or detained" and also added new paragraphs
to ensure that families accompanied by one or more minors will
be given separate accommodation and "only be detained as a
measure of last resort". JRS welcomes this amendment to the
draft directive as it respects international human rights
instruments.
Re-entry ban
Another key issue of the draft directive is that forced removal
orders might include an EU-wide re-entry ban valid for up to
five years. MEPs stressed that such a ban should be provided for
only as a possibility, to be decided upon by the Member State
case- by-case, rather than mandatory, as the Commission had
suggested.
JRS welcomes this attempt of the EU Parliament to water-down the
scope of the re-entry ban as it was set up in the Commission
proposal but regrets that the re-entry ban may last five years.
Moreover, besides the fact that a five-year ban is too long, the
re- entry ban could amount to a double penalty. It could have
far-reaching consequences for the principle of non-refoulement
as guaranteed by the 1951 Refugee Convention. The situation of
returnees may indeed change after they have been removed – they
may become eligible for the status of refugee. A general
re-entry ban for 27 EU Member States for such a long time, not
considering that the person may be returning into an unstable
condition which might turn worse, excludes any possibility to
find refuge. Some persons may probably feel obliged to turn to
smugglers if they are desperate and are excluded from legal
entry. Thus the instrument of a re-entry ban may increase
irregular migration and may cause deterioration in relations
with third countries.
Sources:
http://www.europarl.europa.eu/news/expert/infopress_page/018-10237-254-09-37-902-20070910IPR10221-11-09-2007-2007-false/default_en.htm
JRS Memorandum to the Portuguese EU Presidency September 2007
(pdf) [64KB]
March 2006 Christian Organisations' Comments on the European
Commission proposal for a directive on common standards and
procedures in Member States for returning illegally staying
third-country nationals (pdf) [199KB] |
