For the rejection of the…

                                           For the rejection of the Returns Directive



1 ­ Background

Since the end of the year 2002, within the framework of its programmes to fight illegal
immigration, the European Union has issued proposals with a view to harmonising
European laws on the removal and detention of people with a status as illegal
immigrants. A Green Paper (April 2002), followed by a Commission Communication
and a Council Action Plan on Returns (November 2002), provided for restrictive
norms and common operational measures. The Union initially focussed on this
second aspect: the Decision on EU charter flights (April 2004), the negotiation of
readmission agreements (ongoing since 2000), the Directive on sharing the financial
burden of removals, etc..

On 1 September 2005, the European Commission presented a Proposal for a
Directive on common standards and procedures in Member States for returning
illegally staying third-country nationals. The text submitted by the Commission aims
to harmonise legislation on the detention and expulsion of "illegally staying"
immigrants at a European level. It does not seek to protect people, but rather, to
improve the effectiveness of expulsion. The idea is to furnish it, in concrete terms for
its implementation, with a Fund for returns that is currently under discussion before
the European Parliament.

The European Commission then sent its Proposal to the Council and the European
Parliament, the two institutions responsible for reviewing its contents and its
subsequent adoption, using the co-decision procedure in this field for the first time.
This means that, unlike for previous directives, the Parliament's opinion is a binding
opinion carrying the same weight as that of the Council.
The Directive is therefore currently being negotiated within the two institutions, in
parallel.

On 12 September 2007, the Committee on Civil Liberties of the Parliament
(hereafter LIBE committee) voted for a compromise on the report by the German
MEP, Manfred Weber (PPE). At present, a vote in plenary session is scheduled for
29 November 2007. The stakes are high for the MEPs who want the text to be
adopted at all costs, as this would prove that the co-decision procedure is a reliable
instrument and that the European Parliament is capable of negotiating matters as
thorny as the fight against illegal immigration with the Council, and furthermore,
involving legislative proposals.

In June 2007, the Portuguese presidency proposed a compromise to the Member
States and expressed its desire to see the text adopted before the end of its mandate
(December 2007).

Subsequently, a conciliation procedure between the two institutions will take place.
2 ­ The activity of NGOs

Since August 2005, Cimade, alongside its European partners1, had proposed a
series of "common principles on the removal of migrants in an irregular situation and
rejected asylum seekers", highlighting the fundamental principles that should prevail
in the drawing up of any expulsion policy, "including the future European directive on
returns".2
These nine principles include that of detention being an exception that must only be
used as a last resort, for which a maximum length that should be as short as possible
must be set by the law. Likewise, they include the prohibition of re-entry bans, the
principle of voluntary return, the protection of vulnerable people against expulsion,
the systematic suspension of expulsion measures against which appeals have been
filed...

Later, a campaign for the inclusion in the text of the MEPs of amendments asking for
the protection of minors against expulsion and detention was conducted during
several months, which was supported by numerous associations and MEPs3 but did
not lead to any results as the LIBE committee nonetheless voted a text allowing the
detention of minors accompanied by their families for 18 months.

The report voted by the LIBE committee is a long way away from respecting the
principles defended by NGOs. Worse still, on certain points, particularly the length of
detention, it has even hardened the proposal of the European Commission, which
proposed a 6-month limit. Today, it is no longer conceivable to continue
expecting the text to be changed in a positive direction, nor for key
modifications to be introduced that would allow the needs and dignity of
individuals to be respected. This is why we are insistently asking that this text
be rejected.


3 ­ Contents of the Directive

Although the text has evolved considerably between the Commission proposal in
2005 and the compromise reached by the Committee on Civil Liberties, Justice and
Home Affairs (LIBE committee) of the Parliament in 2007, it is nonetheless still a
text that proposes norms that will institutionalise the expulsion and detention
of people with an illegal immigration status.
It appears at a time when standards on the definition and ending of legal residence
have not yet been harmonised at a European level, thus laying the foundations for
common repression before defining the basis for legal residence jointly.


1
 Amnesty International EU, Jesuit Refugee Service Europe, ECRE, Caritas Europa, PICUM, Human Rights
Watch, CCME, Save The Children, Sensoa, Quakers, FCEI, Spanish Evangelical Church



2
    Common principles on removal of irregular migrants and rejected asylum seekers
3
    www.nominorsindetention.org
As is true of the Directive harmonising the right of asylum in Europe, it is a text that
does not seek to ratify the best practices, but rather, to adjust to the minimum
standards in Member States, that is, to harmonise towards the lowest common
denominator.

The basis of the Directive rests on a system inspired by the German system: a very
long detention (18 months), expulsion measures involving a systematic ban on re-
entry. Protection against expulsion and detention is very weak.

a) Very weak legal protection against expulsion

The Parliament's LIBE committee improved the 2005 proposal very marginally by
introducing a slightly wider list of vulnerable categories of people. However, thus
defined, these categories are not particularly protected. The text only refers to them
insofar as the conditions in which they must be kept during the expulsion period are
concerned: vulnerable people must then be treated in a "specified manner".
The LIBE committee states the principles arising from international obligations that
Member States are bound to respect; non-refoulement of asylum seekers (1951
Geneva Convention), the best interests of the child (1990 International Convention
on the Rights of the Child), the protection of private and family life (article 8 of the
European Convention on Human Rights). But there are no specific provisions to
guarantee their implementation in operational terms.

Only two categories seem to be relatively protected by the committee;
"unaccompanied minors should neither be expelled nor detained"(article 5, c) and
"person suffering from a serious illness" (article 5, d) even if the provision on
unaccompanied minors should be confronted with the provisions on minors in
detention (article 15 bis).

What about other categories? Pregnant women, minors with parents, people with
family links in Europe, victims of torture and slavery? Has the European Union not
envisaged any norms for their protection against detention or the violence of
expulsion?

b) Excessive length of detention

Detention can be ordered when the person poses the risk that he/she may flee, or a
threat to public order. In its report, the LIBE committee allows detention as a
form of "control", which is not aimed at holding people for the time needed to
organize their deportation (as is still the case in France); but rather, it allows a
veritable exclusion, a means of control over undesirable populations. What is
laid out in the committee's proposal allows a veritable administrative detention,
raising it to the level of a European norm.
This Directive opens the way for practices that are already taking place in certain
countries, consisting in depriving migrants of their freedom, even while their asylum
applications or residence permits are being examined, becoming commonplace.

The duration of administrative or judicial detention, which can stretch to 18 months,
corroborates this observation. The LIBE committee proposes that detention may be
extended to 18 months when a foreigner does not co-operate, or when there are
difficulties to obtain his/her travel documents, or when the person represents a threat
to public order.
When one knows from experience that the expulsion of an immigrant takes place in
the 10 first days of detention in the large majority of cases, it is evident that using
such a lengthy duration is only aimed at punishing and controlling. Detention, as
defined by the Parliament, represents an institutionalized criminalisation of foreigners
in Europe.

c) A systematic penalty banning re-entry into European territory*

A ban from European territory for up to 5 years could accompany every expulsion
measure. The Parliament proposes not to make such a ban from the territory
obligatory, and that it may be withdrawn or suspended for humanitarian or other
reasons.

This ban already exists in several European countries (Spain, Germany, Poland...). It
can only lead to absurd and unacceptable situations, by banning people who may
have established their entire lives in Europe for a very long period, and by inevitably
plunging them, and those who may want to return. Such a measure would also have
the effect of turning any "sans papier" into a person guilty of an offence who would be
punished twice, through his/her repatriation and by forbidding him/her from returning.


4 ­ Main existing measures for expulsion and detention in Europe

EU Member States have all set up different mechanisms to remove and detain
people residing illegally in accordance with their geographical, political and economic
situations. Overall, these systems are hardly fitted within legal frameworks, the norms
on detention conditions are not defined, and the length of detention ranges from 32
days to unlimited periods.

The older Member States are traditionally States on the receiving end of immigration
flows that have had to organise the arrival of migrant populations for decades and
have thus developed and adapted systems for removals since a long time ago.
However, detention has been conceived, above all, in northern European countries,
as a tool for managing migrations, having a function of "exclusion" and involving long,
and even unlimited, detentions ( England, Sweden, etc.).
France represents an exception in this landscape, as it uses a fairly well-framed
system with the shortest length of detention in Europe (32 days) and more protection
provisions than elsewhere. This system, that hence offers more protection, gives rise
to many dramatic personal situations.

The countries of southern Europe, apart from coping with inter-European migrations
that they experience, are also the gateways into the European Union from its
southern side. They face the arrival, particularly by sea, of migrants and asylum
seekers coming mainly from Asia and Africa. These countries have developed
systems for detention "on arrival", by establishing the systematic detention of people
as they come off the boats or after they have been rescued in the sea: detention in
camps that simultaneously serve as places for identification, for lodging asylum
applications, for awaiting their outcome, and for detention while waiting to be
expelled. These functions may be alternative or cumulative. Detention conditions in
these countries (Italy, Spain, Greece, Cyprus, Malta) are regularly denounced by
international organisations and NGOs.

The European Directive whose preparation is underway would be meant to apply to
these places and procedures as well. It will not prevent the detention of asylum
seekers. It will not establish adequate protection norms to prevent the present
conditions, which are already deplorable, from becoming even worse.

The countries of Eastern Europe that joined the EU in 2004, which, for some, are
gateways into the EU as well, have adopted laws within the framework of their
adhesion to the European Union. Poland, Slovakia, Romania and Bulgaria are States
that do not have a long tradition in receiving foreigners. At present, they are
responsible for managing the entry of migrants travelling across land routes into
Europe, and have been financed by the European Union to build detention centres at
their borders. The conditions here are also deplorable and the periods of detention
are unacceptable (up to several years).


5 ­ Conclusion

This draft Directive opens the way for making a policy for the internment of migrants
commonplace. This approach runs exactly contrary to the values that have founded
and allowed the construction of Europe in the wake of the Second World War.

It is up to the European Parliament to defend the fundamental values and liberties
that are the foundation of the European project and give it sense. We call on the
MEPs to refuse to vote in favour of this draft.

The latter bear a historical responsibility today: to react so as to prevent Europe from
descending back into the dark hours of segregation between nationals and
undesirables, by making the use of camps and forced expulsion systematic.