Brussels, 01/09/2005 (Agence Europe) - On Thursday, the European Commission proposed a directive aiming to harmonise procedures pertaining to returning third country nationals staying in the European Union illegally. "People staying in the European Union illegally must return to their country of origin", Commissioner Franco Frattini told the press, indicating that only one out of every three decisions to return a person was actually carried out. The proposal does not deal with the reasons why the stay was declared illegal, concentrating instead on the consequences, from possible detention to returns, via the right to appeal against a decision. It goes as far as proposing that any return decision should be accompanied by a ban on returning to the EU for a maximum period of five years, which would be valid for the State which made the decision, but also for the whole of the EU.
It is three years since the Commission announced a proposal in this sensitive area, but it has not yet got as far as putting the text on the table, given the qualms of the Member States regarding the very principal of the harmonising standards or procedures (EUROPE 31/10/2002). According to a Community source, it is thought that the Member States no longer have a veto regarding the principal, even though talks are likely to be very hard, particularly on detention before returns all the right to appeal against a return decision. Thanks to changes decided on less than one year ago, the directive will not be adopted solely by the Council, but in co-decision with the European Parliament.
More specifically, the Commission proposes that "the return decision will provide for a voluntary departure time scale of no more than four weeks, unless there is reason to believe that the person concerned could abscond during that time", in which case alternative measures may be taken, including detention. A country cannot take a return decision which runs counter to international law, particularly the right for family reunification or education. A person who holds a residence permit in one Member State and agrees to return there cannot be expelled, even if the residency permit is in the process of being renewed. The return decision itself can be taken at the same time as the return is being carried out "if there is a risk that the person may abscond ", or separately if the person did not leave voluntarily during the time scale assigned to him or her. The text gives no details about the conditions in which a person can be asked to leave a country, and therefore does not provide any framework for the use of force, beyond a reiteration of the principal that this should not exceed what is reasonable.
Return and expulsion decisions must be communicated in writing, with reasons in fact and in law, and translated by request of the interested party. The Commission proposes that the directive should include the right for effective recourse to law against the expulsion decision, but states that this recourse should not automatically suspend the decision. Nonetheless, the person subject to the return decision should always be able at least to ask for a suspension, even if this is not provided for by law. According to a Community source, it is thought that many of the Member States would not have agreed to the appeal procedure automatically bringing about a suspension of the decision.
The Commission proposes that if the person is detained pending expulsion, this "temporary custody" cannot exceed six months, which represents real progress, according to Commissioner Frattini. The detention decision must be taken by a legal authority, or be confirmed after a period of 72 hours by a judge if it was initially taken by an administrative authority. Detainees must be treated "humanely and with dignity", a priori in specialist temporary custody centres. If detainees are kept in a prison, they must be physically separated from common law prisoners. Minors must never be held in custody in a prison, and must be kept separately from adults, except if this runs counter to the interest of the child. International and non-governmental organisations must have access to these centres, but this may be subject to prior authorisation.
If a person whose illegal stay has been reported by one Member State is arrested in a different Member State, the latter may carry out the return or call upon the former to take the person back. The Member States are not obliged to apply the directive to people intercepted in transit in an airport, except where it pertains to detention conditions.
The Member States have already adopted a range of legislative texts and non-legislative documents on expulsions, which focus mainly on timely aspects. These are: November 2002, an action plan on returns; number 2003, a directive for transit assistance if a person is expelled by a Member State via another Member State; April 2004, a non-binding decision on the organisation of joint expulsion flights, with various standards for these expulsion flights to be carried out; February 2004, a decision on sharing the costs of an expulsion carried out by one Member State by request of another Member State, which adds to the 2001 directive.