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Irregular Immigration in the European Union: The Adoption and Implementation of the Controversial Returns Directive (Directive 2008/115). Diego Acosta Centre of European Law King’s College London. 3 actors in the EU. Good: Parliament. No legal power, open stance towards migration.

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Irregular Immigration in the European Union: The Adoption and Implementation of the Controversial Returns Directive (Directive 2008/115)

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Irregular Immigration in the European Union: The Adoption and Implementation of the Controversial Returns Directive(Directive 2008/115)

Diego Acosta

Centre of European Law

King’s College London


3 actors in the EU

  • Good: Parliament. No legal power, open stance towards migration.

  • Bad: Council. Restrictive view, consider migration as part of their sovereignty.

  • Ugly: Commission. Open view, but not “sexy enough” from the point of view of the Council.


“Trialogues”

  • Trialogues: secret meetings between the Council (the Presidency) and the EP (the rapporteur) to arrive to first reading compromises.

  • Negotiations informal and opaque. Hence, they enhance efficiency at the expense of accountability.

  • Contrary to the principle of openness and visibility of proceedings of the EP.


The Returns Directive

  • Directive on common standards and procedures in Member States for returning illegally staying third-country nationals.

  • Criticisms:

    • Detention up to 18 months.

    • Re-entry ban up to 5 years. Both linked to:

    • Voluntary departure only between 7 and 30 days.


Two questions

  • Did the involvement of the European Parliament produce a more open migration policy with this Directive?

  • Is the European Parliament changing its rationale towards immigration? Is it becoming “bad” and “ugly”?


Issues

  • Scope

  • Period of voluntary departure

  • Re-entry ban

  • Remedies

  • Detention

  • Unaccompanied minors


Re-entry ban.

  • For a period not longer than 5 years.

  • Some cases in which the re-entry ban may be withdrawn.

  • When should the re-entry ban be imposed?

  • What were the cases in which a re-entry ban should not be imposed or withdrawn?


Optional.

More cases in which it might be withdrawn.

Compulsory.

Discretion from the MS not to impose or withdrawn the re-entry ban.

Re-entry ban.


Re-entry ban.

  • Compulsory in two cases:

    • No period for voluntary departure granted.

    • Obligation to return has not been complied with.

  • MS have to consider withdrawing or suspending the ban when the

    • TCN has complied with the return decision.

    • Victims of trafficking in human beings can not be imposed a re-entry ban.


Detention.

  • 6 months maximum limit.

  • Custody orders controlled by judicial authorities within 72 hours.

  • What was the maximum period of time that a TCN could be deprived of his/her freedom?

  • What controls should MS put in place in case of detention ordered by an administrative authority?


3 months maximum except in some specific cases where it could be extended to 18 months.

48 hours.

6 months to indefinite.

Speedy judicial review in accordance with national law.

Detention


Detention.

  • 6 to 18 months.

  • Provide for judicial review to be decided expeditiously from the beginning of the detention.


Voting in the Parliament

  • Pragmatism

  • Fear of the following French Presidency

  • Pressure from the respective national governments

  • Procedural constraints


Content of the Returns Directive

  • Period for voluntary departure: 7-30 days.

  • Re-entry ban: up to 5 years.

  • Possibility of detention: up to 18 months.


Implementation: Spain &Italy

  • Largest number of migrants received since 2000.

  • Large number of undocumented migrants.

  • Different regularization processes.


Implementation: Spain

  • Voluntary departure: Now 7 to 30 days.

  • Re-entry ban: Now up to 5 years.

  • Detention: From 40 days before to 60 now.


Implementation: Italy

  • Entering or staying in Italy is a crime punishable by a fine of 5 to 10 thousand Euros.

  • Detention from two to six months.


Conclusions

  • EP did not do enough although it improved the Directive.

  • Dangerous signal for the future of co-decision process in this area.

  • Questions involving the democratic process in the EU.

  • ECJ role important in the future. Case Kadzoev C-357/09.


Conclusions

  • Hence, Parliament still good but certainly becoming worse and uglier.

  • Implementation brings positive and negative news from the point of view of migrant’s rights.

  • EU should think about the message it sends to special partners (LAC).

  • EU LAC meeting 18 May.


Thank you very much!

Comments, critiques:

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