The EU adopts the French immigration proposals
01 August 2001
Taken as a whole, the four French proposals have been worsened, not improved, by the process of negotiation within the Council... for migrants and asylum-seekers the "area of freedom, security and justice" consists largely of measures preventing their entry and removing them from the EU"
Last year, the French Presidency proposed four measures which would make it considerably harder for asylum-seekers to reach the EU or to stay here after entry, all in the name of combatting illegal immigration (reported first on Statewatch News Online, July 2000). After a year of negotiation, two of these measures have been adopted and two are the subject of "political agreement". In many respects, the final versions of these measures are even worse than the initial proposals, and their overall impact will be to criminalise asylum-seekers and irregular migrants even more than at present.
Preventing legal entry: the carrier sanctions' directive
The Directive on carrier sanctions, agreed by the JHA Council in May 2001 and formally adopted by the Transport and Telecoms Council at the end of June, supplements the provisions on carrier sanctions in Article 26 of the Schengen Convention, a provision which the UK has also signed up to. It requires Member States to choose one of three options for imposing sanctions on carriers who have transported foreigners without the necessary travel documents onto national territory: a maximum level of at least 5000 euros a person, or a minimum level of at least 3000 euros a person, or the maximum lump sum per infringement must be at least 300,000 euros per person. The sanctions are 'without prejudice to Member States' obligations in cases where a third country national seeks international protection', but this vague clause does not expressly require Member States to waive the sanctions in any particular case. This means that the final text is weaker on this issue than the original proposal, which would have required Member States to waive sanctions when a person was 'admitted to the territory for asylum purposes'. The German delegation had expressly objected to this original version on the grounds that "[t]here is a risk that the proposed [directive] could...increase asylum applications". Although the final version of the Directive does require Member States to ensure that carriers 'have effective rights of defence and appeal' against the imposition of penalties, there is nothing to specify what the content of those defence and appeal rights should be, and there is no provision for appeal rights against the other obligations in the Directive.
These other obligations are first, that carriers must return third-country nationals not just when a third-country national is refused entry into the territory, but also where third-country nationals are 'in transit', if the carrier which was to take them to the intended destination refuses to let them on board, or if the authorities of the state of destination refuse them entry and send them back to the country of transit. Secondly, Member States shall oblige carriers which cannot themselves effect the return of a third-country national to find means to ensure the 'immediate onward transportation' of a person refused entry and bear the cost of that transportation, or if this is not possible, to assume responsibility for the costs of that person's stay and return. When carriers have to arrange onward transportation, there is no express provision preventing carriers from arranging such transportation to unsafe countries, as this clause in the Directive makes no reference to the Geneva Convention on refugees or other human rights rules.
The Directive will mean that asylum-seekers will have even greater difficulty obtaining legal passage to a Member State. Due to the combination of increased penalties for carriers, new cases where third-country nationals will have to be returned, and new obligations to pay the costs of either immediate onward transp