The Returns Directive Principles and Protests Anneliese Baldaccini Seminar at the Centre for Migration Law, Radboud University Nijmegen February 2011

Table of content 1. Principles & safeguards in the Returns Directive 2. Detention 3. Scope of the Directive 4. A solution for limbo situations? 5. Entry ban

1. Principles in the Returns Directive In recitals of the Directive  UN Convention on the Rights of the Child (recital 22)  ECHR (recital 22)  1951 Refugee Convention (recital 23)  EU Charter of Fundamental Rights (recital 24)  Guidelines on Forced Return adopted by the Council of Europe Committee of Ministers (recital 3)

1. Principles in the Returns Directive In operative part of the Directive:  non-refoulement (articles 4(b), 5, 9(1)(a))  family unity (articles 5(b), 14(1)(a))  best interests of the child (articles 5, 10(1), 17(5))  No mention of collective expulsion!  But see recital 6 re case-by-case examination

1. Procedural safeguards  Reasoned return/removal/entry ban decisions (Art.12)  Information about legal remedies (Art.12)  A right to appeal those decisions (Art. 13)  A right to free legal assistance/representation in accordance with national rules (Art. 13)  Safeguards pending return: family unity, emergency health care, education of minors, special needs (Art. 14)

1. Other safeguards...  Voluntary departure (Art.7)  Postponement of removal (Art.9)  Alternative measures to detention (Art.15(1))  Effective forced-return monitoring mechanism (Art. 8(6))

2. Detention Legal Safeguards (Art.15 + recital 16):  Subject to principle of proportionality and necessity  Less coercive measures to be considered first  Only justified to prepare removal when there is risk of absconding or TCN is uncooperative  For shortest possible time and only when removal arrangements in place and executed with due diligence  Requires written reasons in fact and law  Subject to judicial and administrative review  Immediate release if conditions for detention no longer exist Legal safeguards against unlawful and arbitrary detention

2. Detention  The areas where EU detention standards are extremely weak concern judicial supervision and duration of detention 18 months max detention (6+12)  Can be an administrative decision  No requirement for automatic initial and regular review by courts of lawfulness of (continued) detention

2. Alternatives to Detention (ATD)  Duty to provide alternatives:  UN Human Rights Committee: C v Australia (2002) Article 9.1. ICCPR  Council of Europe: 20 Guidelines on forced return – Guideline 6.1  Returns Directive: Article 15(1) and Recital 16  FRA 2010 Study: Detention of TC Nationals in return procedures  Most MS already provide some ATD Alternatives to Detention

2. ATD: increasing regional and international interest  FRA study: detention of TCN in return procedures  Exchange of best practice among MS  Council of Europe PACE Report and Recommendation  UNHCR undertaking study on ATD worldwide

2. Prolonged detention  Evidence of deteriorating practice in MS  Italy  Greece  Spain  Czech Republic  France (in draft law)  Netherlands (in draft law) ....

3. Scope of the Directive Third Country Nationals not covered are: A. People apprehended/intercepted during irregular crossings by land, sea or air of external borders (Art.2(2)(a))  only basic safeguards (Art. 4(4)):  Use of coercive measures  Postoponement of removal for physical/mental incapacity  Emergency health care/special needs  Detention conditions  Respect of non-refoulement

3. Scope of the Directive  no indication on time of apprehension or exact location of apprehension – but see definition of “border region” in readmission agreements!  Turkey-EU RA: an area within its territory extending inwards up to 20 km from the external border of the requesting state, whether or not the border is shared, as well as sea ports, custom zones, international airports  Relevant for return/readmission under accelerated procedures

3. Scope of the Directive A. Border cases B. People who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures C. People enjoying EC free movement rights

3. Scope of the Directive  People who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures  “crime of illegal entry and stay”

4. A solution for limbo situations?  Postponement mandatory (Art.9(1)) or discretionary (Art.9(2))  Safeguards while removal is pending + obligation to provide written confirmation of position (Art.14)  no measures to support these people in the interim (only mention of basic conditions of subsistence in recital 12)  no requirement to put an end to limbo situation

4. A solution for limbo situations?  The lack of any obligation to provide adequate resources to meet the basic necessities of life leaves people, whose expulsion in practice cannot be enforced, in a position of extreme precariousness and vulnerability.  The legal framework agreed does not include an obligation to end a limbo situation by granting some form of status after a certain amount of time.

5. Entry ban Ban is issued where...  a return decision was taken without a period for voluntary departure being granted  there was no compliance with an obligation for return Ban should not exceed 5 years  Except if: threat to public security (article 11(2))  Not to victims of trafficking

5. Entry ban  MS retain a general power to refrain from issuing a ban (article 11(3))  ban should be lifted if TCN complies with return decision (in Direct.: “consider”)  pushes people into prolonging their irregular stay for as long as detection can be avoided (or regularization achieved)  makes it difficult for someone who is subsequently persecuted to seek asylum in the EU

5. Entry ban

To conclude…

Who is bound?  All EU MS except Ireland and UK  Associated Schengen States:  Norway  Switzerland  Iceland  Liechtenstein

State of transposition (as at January 2011)  5 MS has notified full transposition:  Spain, Czech Republic, Estonia, Portugal, Slovenia (+ Switzerland)  4 MS have notified partial transposition:  Belgium, Lithuania, Latvia, Swede  Infringement proceedings started against 20 MS (for incomplete or lack of transposition)

Reports on implementation  Commission to report by end 2013 with particular focus on application of  Article 11 (entry ban)  Article 13(4) (free legal aid)  Article 15 (detention)  Reports to EP and Council on implementation every 3 years  Can propose amendments