28 March 2012
Expelling migrants from the EU:
Fast-track legislation and sham consultation
Background: The Green Paper on 'Return' of Migrants
In April 2002, the Commission released a Green Paper on an EU policy on 'return' (expulsion, deportation or repatriation) from the EU: Green paper (pdf)
The Green Paper suggests that the EU develop a detailed policy on expulsion of migrants who never had documents authorising them to enter and reside or who documents authorising them to reside have expired ('irregular migrants'). This was the first time that the Commission had issued a Green Paper on any aspect of EU immigration or asylum law. The purpose of EU 'Green Papers' is to launch a wide-ranging public discussion on whether the EU should have a policy on a particular subject at all and what the content of that policy should be. Usually, the Commission leaves a year or more after the submission of the Green Paper so that there is time for national and sub-national parliaments, the European Parliament, civil society, EU consultative bodies and national executives to comment on the issues.
For this Green Paper, the Commission organised a public hearing on 16 July 2002, at which civil society groups which came to speak were allotted the princely period of five minutes each to respond to the Green Paper: Public hearing notice
The Commission also encouraged responses in writing by a deadline of 31 July 2002. In response to this Statewatch has submitted comments raising a number of concerns about the implications of the Green Paper for human rights and civil liberties: Statewatch submission
Implementing the Green Paper
One important part of the Green Paper was implemented when the Council adopted criteria on states which the EC wanted to adopt new readmission agreements with, as well as a list of such states (China, Algeria, Albania and Turkey): Council criteria and list
The criteria and list were adopted just over two weeks after the release of the Green Paper - barely enough time to read the Green Paper, never mind hold a public discussion on the desirability and details of an EU policy.
Subsequently the Seville European Council requested the Council to agree a policy based on the Green Paper by the end of the year: Seville Conclusions (background documents and Conclusions on Asylum & Immigration)
This presupposed an answer to the most basic issue the Green Paper raised: should there be an EU policy at all on expulsion of migrants?
Alternatively it could be argued that development of such a policy had to wait until other aspects of EU policies are developed. Logically it is difficult to have a policy on expulsion of irregular migrants until after the EU has developed policies on when migrants should be permitted to enter and reside. Also if an expulsion policy also covers rejected asylum-seekers (as the Green Paper suggests) there logically needs to be agreement on asylum procedures first, as such procedures are closely related to expulsion procedures where an application is rejected. But the deadlines agreed in Seville require agreement on an EU expulsion policy before agreement on legislation on legal migration and asylum procedures, even though the latter measures should logically be agreed first.
At least the Seville deadline in principle leaves just enough time for the public reaction to the Green Paper, as expressed at the hearing in July and in the written submissions sent in July, to be considered. But the Danish Council Presidency nonetheless took action without waiting to hear from the public. On 11 July, it submitted a note to Council working bodies on a draft programme on expulsion: note on draft expulsion programme
This note scheduled discussions on the Green Paper in committees on 17 July and 22/23 July--before the deadline for submission for public comments. A Commission Communication is then scheduled for September 2002 with an Action Plan to be agreed by the Council in November 2002. So there will be no real chance for public input on the planned Commission Communication (see further the Danish Presidency road map on EU immigration and asylum law
The discussions in July were planned to cover topics in the Green Paper which the public was invited to comment on: common guidelines on expulsion measures, including operational coordination on expulsion; forced and voluntary return; and country-related return programmes. In fact, the Presidency has also already issued a separate discussion paper on operational coordination: expulsion coordination paper
The coordination paper covers: common definitions in expulsion matters; identification of 'illegal residents'; obtaining travel documents; common repatriation operations; use of immigration liaison officers; and the holding of annual meetings. All these issues relate to the Green Paper, and some of them are mentioned in the Green Paper expressly.
Furthermore, the Danish note on the draft expulsion programme clearly suggests a wider approach to the issue of expulsion than proposed by the Commission. The Danish Presidency also want to cover voluntary return by legally resident persons who have international protection status (refugee status or another form of stay based on a threat to them in their country of origin). This topic is not raised in the Green Paper (which only covers removal of 'illegal' residents) and therefore any programme on this issue agreed by the Council will be agreed in the absence of any public discussion of whether the EU should act on this issue and if so, what it should do.
Finally, there is already a legislative proposal on the table on an important aspect of expulsion policies. A German proposal for a directive on transit and expulsion obviously prejudges not only the need for an EU expulsion policy and the timing of that policy, but the Council plan to be adopted in November following a further Commission Communication. Clearly there was no EU-wide consultation before this proposal was drawn up: proposed Directive
This proposal requires any Member State to assist in the expulsion of a migrant whenever requested by another Member State. This will include detaining or using 'legitimate force' against a migrant. Each Member State will automatically have to accept the word of the Member State requesting assistance that there is no risk of torture, death or other inhuman or degrading treatment for the migrant in the state of destination. The requested state would not be obliged or even permitted to consider whether this was in fact the case, as long as the officials of the requesting state have ticked a box on a form asserting that there is no such risk! There is no obligation on the requesting state to limit requests to certain situations, or to consider human rights issues before deciding to expel and requesting assistance of another Member State. Moreover, Article 6 of the proposal fails to mention that observation of the European Convention on Human Rights and other international human rights treaties (the UN Convention Against Torture and the UN Covenant on Civil and Political Rights) must also have higher priority than the Directive.
The proposal can be compared with the already-agreed Directive 2001/40 on mutual recognition of expulsion decisions. This Directive is flawed, but it does require requested Member States to ensure that there are no human rights risks before they carry out an expulsion order at another Member State's request, and requires them to permit migrants to challenge any decision to enforce any expulsion decision. It only applies to expulsion in limited situations and the family members of EU nationals are exempt from it. There are express rights on data protection, and Member States are explicitly required to apply the Directive 'with due regard for human rights and fundamental freedoms'. All these essential limits and safeguards are missing from the proposed Directive on transit. So even the weak standards agreed in 2001 would be dropped where this new proposal applies.
Without EU standards on expulsion decisions and asylum
procedures set at a high level, application of this proposed
Directive in its current form would run a huge risk of violation
of fundamental human rights.
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