Fighting illegal immigration: The Return Directive


Faced with an ever-increasing flow of immigrants towards its borders, the EU has adopted a directive that defines procedures for the return of illegally resident third-country nationals. But the EU initiative received bad publicity in Latin America after being labelled the ‘Directive of Shame’.

The Hague Programme, endorsed by the European Council in November 2004, foresaw the creation of a common immigration and asylum policy for the EU, which had just been enlarged to ten new member countries in January of that year. 

In December 2005, the Commission issued its policy plan on legal migration which defined the roadmap for the Hague Programme. The policy plan listed a series of measures to be adopted by 2009, including: 

  • A horizontal directive introducing a single procedure and permit for migrants seeking to work in the EU. 
  • Four sectoral initiatives for highly skilled workers, seasonal workers, remunerated trainees and intra-corporate transferees. 

While creating a framework for legal access to the European Union, the EU institutions also adopted a directive on procedures for returning illegally resident third-country nationals, first presented in 2005 and approved by the European Parliament on 18 June 2008. 

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. 

EU Justice, Freedom and Security Commissioner Jacques Barrot supported the compromise reached in Parliament on the Return Directive, saying it gives priority to voluntary returns as well as to protecting the rights of children and families. He added that the Commission would monitor the implementation of the legislation to ensure that the standards of the European Convention and the UN Declaration on Human Rights are observed. 

German MEP Manfred Weber (EPP), the rapporteur on the directive in the European Parliament, commented that "a good balance between a strict repatriation policy and humanitarian standards in relation to illegal residents" had been put in place. "The European Commission and the European Court of Justice will have a legal base for supporting activities to help illegal immigrants. Europe has made it clear that we are not tolerating any form of illegal status. The European Parliament has shown that co-decision in the field of justice and home affairs works." 

UK MEP Graham Watson (ALDE) echoed Weber's view, stating: "There is agreement on the handling of illegal non-EU citizens." The leader of the Liberal group in European Parliament expressed his hope that Europe's "commitment to a human, efficient and sustainable management of migration will be taken on by the French [EU] Presidency and put into action". 

His Belgian colleague Gérard Deprez (ALDE) said that in the debate, "the realists have won the vote over the idealists". "Of course we also would have liked to see a directive that would set higher common standards. But political reality shows that by amending this directive, we would have ended up with nothing at all. It would have given the member states the opportunity to bury the directive. Illegal migrants would have been the victims of good intentions." 

The left, alongside human rights NGOs, argues that the text does not offer enough safeguards to migrants. 

Amnesty International was very disappointed with the outcome of the vote on the Return Directive. In their view, the text approved by the European Parliament does not guarantee the return of irregular migrants in safety and dignity. The added value of this EU directive is therefore hard to see, the NGO claims, saying the agreed text risks promoting prolonged detention practices in EU member states and impacting negatively upon access to EU territory. 

Bjarte Vandvik of the European Council on Refugees and Exiles (ECRE), an NGO, said "the fundamental rights of persons being removed from EU territory will not be fully guaranteed in this legislative instrument". "While the directive aims to harmonise practices, the practical outcome is a codification at EU level of the member states' harshest practices and policies," it said. 

The Return Directive has also provoked scathing criticism from developing countries, particularly in Latin America

Venezuelan President Hugo Chavez called the rules "shameful" and threatened both to cancel investment in and disrupt oil exports to the countries that enact the controversial immigration measures. While Brazilian President Lula da Silva said "the cold winds of xenophobia are once again blowing from Europe," his Ecuadorean colleague Rafael Correa warned that trade talks between the EU and the Andean Community could be suspended if the 27 member bloc pushed ahead with the new law. "What do we have to talk about with a union of countries that criminalises immigrants? It will be very hard to talk business and ignore human rights." 

Meanwhile, the Spanish government has launched an 'information crusade' to explain the directive to Spanish-language Latin American officials and politicians. 

Sverker Rudeberg, the chairman of the immigration working group at European employers' organisation BusinessEurope, said the EU should send a clear signal to third countries that it is not xenophobic. Speaking during the 2008 edition of Employment Week, he called on the bloc not to present a "xenophobic" face to the rest of the world. He argued that legal immigration possibilities can help fight illegal immigration, which is what follows when the demands of the local labour market cannot be met legally. But "businesses prefer not to have undocumented migrants," Rudeberg said. "To prosper in the future, we must have an adequate system to manage migration," he concluded, expressing his indignation that there is still no framework for legal immigration at European level. 

The European Trade Union Confederation (ETUC)'s confederal secretary, Catalene Passchier, highlighted the responsibility of governments who, according to her, often exploit dormant fears of migrant workers for populist policies. She said it is thus important for trade unions to take a clear position: "We don't believe in closed borders. We don't believe that closing borders protects workers." 

  • Dec. 1999: Tampere Summit outlines common EU approach in the field of migration. 
  • Nov. 2000: Commission paper on a Community Immigration Policy. 
  • Nov. 2004: EU summit endorses new programme for justice and home affairs known as the 'Hague Programme'. 
  • Sept. 2005: Commission puts forward proposal for a directive on common standards and procedures for returning illegally staying third-country nationals ('Return Directive'). 
  • 5 June 2008: EU Council of Ministers reaches agreement on the Return Directive. 
  • 18 June 2008: Parliament approves directive (EURACTIV 19/06/08). 
  • 15 Oct. 2008: French Presidency to present EU Summit with its project for a 'European Immigration Pact'. 

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