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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

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

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”

  • 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

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

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

Issues

  • Scope

  • Period of voluntary departure

  • Re-entry ban

  • Remedies

  • Detention

  • Unaccompanied minors


Re entry ban

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  • Some cases in which the re-entry ban may be withdrawn.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


Re entry ban1

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 ban2

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

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?


Detention1

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


Detention2

Detention.

  • 6 to 18 months.

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


Voting in the parliament

Voting in the Parliament

  • Pragmatism

  • Fear of the following French Presidency

  • Pressure from the respective national governments

  • Procedural constraints


Content of the returns directive

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

Implementation: Spain &Italy

  • Largest number of migrants received since 2000.

  • Large number of undocumented migrants.

  • Different regularization processes.


Implementation spain

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

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

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.


Conclusions1

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

Thank you very much!

Comments, critiques:

[email protected]


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