EU: An Area of Expulsion, Carrier Sanctions and Criminalisation

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Taken together, the four French Presidency proposals would prevent asylum seekers from gaining either access to the Union by legitimate means or by any other method, and criminalise all organisations and nonrelatives who assist them, or who assist undocumented migrants. If they do gain entry and then move within the EU, they can be expelled without adequate consideration of human rights or data protection rules. These proposals are even worse than critics of "Fortress Europe" could have expected.

There are three separate proposals for EU legislation, which were subsequently split into four.

Return to the country of persecution

First of all, the Presidency has proposed a Directive harmonising national law on carrier sanctions. This would apply to all air, sea or coach carriers, although Member States will likely be anxious to extend it to lorry drivers also. The Directive would require the carriers to immediately "take charge" of any third-country nationals refused entry for lack of visas or other travel documents when crossing the external border of a Member State, and to return the third-country nationals either to the country which issued the travel document they used to travel, to their state of origin, or to "any other state" which guarantees to admit them. The same applies to any carrier transporting third-country nationals in transit, if those persons are refused entry by the state of destination or refused onward travel by the carrier due to take them there. If carriers are unable to return the third-country nationals, they must pay for the onward transport, presumably to "any other state" willing to admit them. If the carriers cannot transport the third-country nationals immediately, they must "take charge of them".

These obligations make no exceptions for persons claiming asylum. So if a Member State or even a non-Member State which a third-country national is travelling to refuses entry to asylum-seeking third-country nationals because of their lack of visas or travel documents without properly considering their asylum claim, the carrier has to send the asylum-seekers back to the country which is persecuting them. In any event, carriers will likely prove unwilling, as they are already, to take anyone on board who lacks full documentation, as many asylum seekers do. So those asylum seekers will be required to stay in the country of persecution. Moreover, this Directive does not make clear what powers the carriers should have over the persons in limbo, whom they must "take charge" of; the Directive seems to propose some type of authorised private detention system outside the national territory. As a whole, this proposal represents the further privatisation of national immigration policy, because all those asylum-seekers denied a ticket, sent back or held in private detention will have difficulty challenging acts of private carriers.

The Directive also requires Member States to impose fines of at least 2000 euro per person on carriers bringing in persons who lack the travel documents or visas for entry. In this case, Member States cannot impose the fines if the third-country national "is admitted for asylum purposes", but in some Member States asylum applications are considered at the border and refused by border guards with inadequate training in asylum law. The fines and the obligations to transport and detain third country nationals in the Directive are applied regardless of whether the carrier brought third-country nationals to the borders deliberately.

The carriers sanctions Directive will force even more asylum-seekers to have recourse to illegal means if they want to enter the Community. To stop them doing that, the French Presidency has proposed a Directive defining "the facilitation of unauthorised entry, movement and residence" and a connected third pillar Framework Decision "strengthening the penal framework" against such facilitation. According to the Directive, Member States must make it a

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