French Presidency's attack on "illegal" entry and residence, carriers sanctions and expulsion

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The French Presidency's programme includes the following:

1. Directive introducing sanctions for carriers conveying, within the territory of the Member States of the Community, foreign nationals without the documents required for admission to the territory of those Member States (scheduled for adoption at the Justice and Home Affairs Council, 30 November-1 December 2000)

2. Framework decision on combating the facilitation of illegal entry and residence (scheduled for adoption at the Justice and Home Affairs Council, 30 November-1 December 2000)

3. Council Directive on mutual recognition of decisions concerning expulsion of third-country nationals (not currently listed on the provisional agendas)

4. Action plan to improve the control of immigration (as this concerns practice, rather than policymaking, it is not intended to place this on the agenda of the JHA Council)

The French Presidency programme contains four controversial proposals affecting controls over internal and external policies to combat "illegal" immigration.

The Directive introducing sanctions for carriers will cover entry by air, sea and land and will bring in minimum fines of 2,000 per person and the possible liability to return the person(s) to the non-EU state from which they came or to pay the cost of such return.

Draft Framework decision on strengthening the penal framework for preventing the facilitation of unauthorised entry and residence

Framework decisions have replaced Joint Actions in the post-Amsterdam JHA structure and are based on Article 34(2) of the TEU. This proposal to combat the facilitation of illegal entry, movement and residence builds on earlier non-binding recommendations in the field (see Statewatch coverage below) and Joint Actions on combating illegal employment (September 1996) and trafficking in human beings (February 1997).

The new proposal is intended to (further) criminalise anyone who assists an "illegal immigrant" in any way whatsoever. Article 1 reads:

"Each Member State shall take the measures necessary to ensure that the act of facilitating intentionally, by providing direct or indirect assistance, the unauthorised entry, movement or residence in its territory of an alien who is not a national of a Member State of the European Union is regarded as an offence."

Article 2 goes on to say that "participation in, instigation of or an attempt to commit" such offences are punishable. Exemptions from liability are granted where the assisted "alien" is a direct relative or spouse (article 3). Penalties (Article 4) are to include "custodial sentences which may entail extradition" and "where appropriate":

- confiscation of the means of transport used to commit the offence;

- a prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the offence was committed;

- a deportation order if the convicted person is not a national of a Member State of the European Union.

This last provision, for the deportation of third-country nationals who attempt to assist the "entry, residence or movement" of an 'illegal', would seem to threaten many within migrant communities.

Article 5 calls for increased criminal penalties if:

- the offence has been committed by a person belonging to a criminal organisation within the meaning of the joint Action of 21 December 1998 on making it an offence to participate in a criminal organisation...

This measure defined criminal organisations as "associations of more than two persons" and extend the concept of organised crime from serious organised criminals to potentially including a whole host of groups (see Statewatch vol 7 no 6).

Article 5 also calls for increased penalties if the purpose of the offence is trafficking in human beings or the sexual exploitation of children (as defined by the Joint Action of 24.2.97) or if the purpose of the offence is to allow the "alien" to work in contravention of employme

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