Balancing a strict immigration policy with respect for human rights
The Return Directive is part of the Commission's common immigration and asylum policy outlined in the Hague Programme. The EU executive sees the directive as a tool to organise the return of illegal migrants by establishing common standards guaranteeing that they are returned with dignity and full respect for their human rights. It is also seen as a key means of establishing the EU's credibility in the field of migration policy, which is still in its infancy.
The proposal for the Return Directive was first put forward in September 2005. After almost three years of negotiations, member states and institutions have finally reached an agreement on the text, which was adopted by the European Parliament on 18 June 2008 (369 votes in favour, 197 against and 106 abstentions). Overall, the Parliament managed to pass over 70 amendments via the co-decision procedure.
Yet the final compromise was deemed "flawed" by many MEPs from the Socialist Group (PES), the Greens and the left (GUE/NGL), all of whom refused to support it, saying it breached EU human rights standards.
A standard procedure across the EU to regulate expulsion
The Return Directive seeks to standardise the procedures regulating the expulsion of illegal immigrants and close loopholes in national legislation. The text covers periods of custody and re-entry bans and also includes a number of legal safeguards. Under a key principle of the directive, EU member states cannot adopt harsher rules than the ones laid out in the directive. However, they will be able to retain more liberal rules or adopt new ones of a more permissive nature.
The directive establishes a common discipline for all member states to either expel every illegally resident migrant or grant him/her a definite legal status.
Once a decision is taken to deport an individual who cannot claim asylum or refugee status, a voluntary departure period (7-30 days) follows. If the deportee does not leave, national authorities will issue a removal order, which can include an entry ban of up to five years.
If the judicial authority issuing the removal order has serious grounds to believe that the deportee might be hiding, the person can be put into custody. In nine EU member states, deportees can be detained indefinitely; in others, there are less stringent rules. The Return Directive (art. 15) sets the maximum period of custody at six months, with a possible twelve-month extension (6+12: maximum detention adds up to 18 months). An amendment introduced by the PES Group to reduce this to 3+3 was rejected.
The directive describes "temporary custody" as a measure to be taken as a last resort: wherever possible, non-coercive measures should be favoured. The decision to place a person in custody must be approved by courts "as speedily as possible" after such administrative decisions are taken (the original Commission draft suggested a 72-hour deadline, a measure which was subsequently dropped from negotiations despite attempts by the Parliament's LIBE Committee on Civil Liberties, Justice and Home Affairs and the PES to reintroduce it). Regular judicial oversight of the detention decision should in any case be provided.
Article 15 has arguably been the most controversial issue in the negotiations, with widespread opposition from human rights groups and the political left sparking debates beyond Europe. The provision was perceived as a repressive form of administrative imprisonment and attracted strong criticism, particularly from Latin American countries where it was described as the 'Directive of Shame' (EurActiv 27/06/08).
Families, children and asylum seekers
The Return Directive clarifies that families and children can only be held in custody as a last resort and for the shortest appropriate period of time. Unaccompanied minors will only be repatriated if they can be returned to their families or to "adequate reception facilities".
During negotiations, EU countries pushed for their national authorities to be granted greater flexibility in defining "emergency situations": if exceptionally large numbers of illegal immigrants constitute a burden on the country's judicial system, it can allow more time for judicial review.
Legal aid will also be provided to immigrants who have no resources. The return fund set up by the Commission, €676 million for the period 2008-13, can also be used to cover the cost of judicial help for illegal migrants.
Member states must also consider the political situation in the country of origin. In accordance with the principle of “non-refoulement”, procedural safeguards for asylum seekers are left unaffected. A list of countries considered "unsafe" is drafted together by the EU Council of Ministers and the European Parliament.