Brussels, 13/05/2005 (Agence Europe) - Although the European Commission is soon to propose minimum norms on the expulsion of unlawful immigrants, the committee of foreign affairs ministers of the Council of Europe adopted, on Wednesday, guidelines that its member states, including all EU Member States, should follow. The text concerns all the stages of expulsion from the decision to take the measure and including the conditions for detention.
The guidelines of the Council of Europe recall first and foremost the basic principles of international law, namely that a State cannot expel a person towards another State where that person runs the risk of being executed, tortured or if there is the risk of inhuman or degrading treatment. Also, a person cannot be expelled if he/she is, for other reasons, entitled to the status of refugee or to another any form of international protection. The collective expulsions of foreigners is “prohibited”. The text does not prohibit the expulsion of a child but nonetheless specifies that the State should ensure that the child is entrusted to its family, a tutor or a centre that will take the child in.
The decision to send a person away should be communicated in writing to that person, setting out the legal and factual reasons for expulsion. The person in question must be able to appeal the expulsion decision. Appeal procedure should have a suspensive effect if the person to be expelled sets out a defendable objection claiming that he/she would be subject to treatment in breach of human rights.
The guidelines do not ban detention before expulsion but state that the State must first of all verify whether other means, such as cautioned release, can be used. Any detention prior to expulsion must be as short as possible and, when the period of detention is prolonged, this examination should be the subject of control by a legal authority. Nonetheless, the guidelines do not state how long “short” or “extended” detention should last. The text provides details on the conditions of detention, stating that children must not be placed in detention unless it is a last resort measure, for the shortest possible time. Also, families detained prior to expulsion should have separate accommodation in order to safeguard their privacy.
The committee of ministers finds nothing more to say on the matter that expulsion should be operated by a private company, but stresses that, in all cases, the State authorities are responsible for providing escorts for repatriation. Force and constraint must be proportionate to real resistance or that which is reasonably expected from the person undergoing repatriation. It has occurred that there have been deaths by asphyxiation during expulsion and, on this, the text specifies that any techniques of constraint and the coercive procedures that could possibly obstruct respiratory channels partially or totally, or holding the person being expelled in a position that could cause asphyxia, must not be used.
The European Commission is soon to suggest minimum norms for the repatriation of illegal immigrants. “We are trying to be on line” with the guidelines of the Council of Europe, Community sources say. It will be a directive, which is more binding than guidelines. Its scope will be broader, since the instrument, that will apply across the board, will cover all aspects pertaining to the return of unlawful immigrants, whether they agree to leave or are expelled by force. The publication of the proposal, announced by the Commission two-and-a-half years ago (EUROPE 8331) is postponed on a regular basis. Its adoption is now foreseen for end June. Furthermore, the European Commission announces for 2007 the proposal to create a European fund for repatriation.
Several European decisions have already been taken on forced repatriation. Member States have had to apply a 2001 directive since end 2002 on mutual recognition of decisions to repatriate third country nationals. A decision dating back to April 2004, and immediately applicable, is on the organisation of joint expulsion flights. Its annex, which is not of a binding nature, sets out the details of cooperation arrangements, flight preparations and arrival in the third country. It specifies that the escort personnel may resort to constraint but should not be armed, and should keep to a list of coercive measures earlier decided by the different participant States. Expulsions should not be carried out “at any price”. Finally, Member States should, by December, apply a 2003 directive that determines the conditions in which to carry out the stopover in a Member State for a person expelled by another Member State.
The guidelines of the Council of Europe may be consulted at the address: http: //http://www.www.coe.int/