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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

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 and Implementation of the Controversial Returns Directive

  • 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” and Implementation of the Controversial Returns Directive

  • 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 and Implementation of the Controversial 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 and Implementation of the Controversial Returns Directive

  • 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 and Implementation of the Controversial Returns Directive

  • Scope

  • Period of voluntary departure

  • Re-entry ban

  • Remedies

  • Detention

  • Unaccompanied minors


Re entry ban
Re-entry ban. and Implementation of the Controversial Returns Directive

  • 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. and Implementation of the Controversial Returns Directive

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. and Implementation of the Controversial Returns Directive

  • 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. and Implementation of the Controversial Returns Directive

  • 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 could be extended to 18 months..

  • 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 could be extended to 18 months.

  • Pragmatism

  • Fear of the following French Presidency

  • Pressure from the respective national governments

  • Procedural constraints


Content of the returns directive
Content of the Returns could be extended to 18 months.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 & could be extended to 18 months.Italy

  • Largest number of migrants received since 2000.

  • Large number of undocumented migrants.

  • Different regularization processes.


Implementation spain
Implementation: Spain could be extended to 18 months.

  • 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 could be extended to 18 months.

  • 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 could be extended to 18 months.

  • 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 could be extended to 18 months.

  • 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! could be extended to 18 months.

Comments, critiques:

Diego.acosta@kcl.ac.uk