28 March 2012
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- "any possible legitimate "measure" [may be used] to prevent or terminate acts of resistance"
- does the EU care more about cattle than people?
The Italian Presidency of the Council of the European Union (the 15 EU governments) has put forward a proposal to: "terminate the illegal residence of third country nationals" by deporting them overland across the EU until: "the third country national has been finally removed from the territory of the Member States".
The proposal is for a Council Directive to be adopted that would be binding on member states (and is accompanied by another binding measure on joint returns by air, see below).As this comes under the Schengen acquis it is not binding on the UK (or Ireland) but the UK can opt in during the discussions or at any point in the future - in the past the UK has opted into a number of repressive EU immigration measures.
The Italian Presidency is proposing that migrants can be deported by land, to their country of origin or the last "safe" country they passed through, by use of:
"public carriers such as scheduled buses, trains or unmarked police cars"
"Unmarked police cars" could also include police vans. This would either involve a single vehicle from the deporting state passing through a number of EU states or migrants being passed over to vehicles from the state of transit.
The "escort personnel" of police officers will not carry guns but:
"shall wear civilian clothes"
They may also use "legitimate" force to:
"deal with a serious immediate so as to prevent the third country national from escaping or from causing injury to himself [sic] or to others or damage to property"
The police of the "requested state", that is, the state through which the unmarked police car is travelling, can:
"use any possible legitimate "measure" to prevent or terminate acts of resistance offered by the third-country national when trying to evade the transit escort"
The "use of direct force against third-country nationals resisting removal orders" in national legislation "remains unaffected".
"any further measures [can be adopted].. to ensure the continuation of the transit operation"(Article 7.4)
1. The concept of "carriers" (Article 1.e) covers transport run on a "professional basis" by private companies such as buses, coaches and trains but here it is extended to cover transport carried out in an "official capacity" (ie: police cars and vans).
2. The requested EU state, through which the journey takes place, "may" refuse to assist with transit if the migrant faces the death penalty, torture or inhumane treatment.
3. The minimum notice for the requesting state to give the requested state (ie: the state of transit) is only 2 days (to which it is meant to reply giving its agreement) but this can be circumvented if there is in place a bilateral or multilateral agreement to allow deportations simply by the requesting/deporting state notifying the states through which the expulsion from the EU will be carried out (Article 4.5)
4. Most significantly there is no direct mention of "voluntary" or "forced" expulsion. It may be that public transport would normally be used for "voluntary" deportations (though this does not rule out the use of restraints) and "forced" deportations where the migrant may resist "removal" by unmarked police cars.
5. Although the Italian EU Presidency is putting the proposal forward it should not be thought of as an "Italian" initiative. The policy is set out in Article 63.3.b. of the Treaty establishing the the European Communities agreed at the Amsterdam Summit in 1997 by all EU governments. It was developed in the agreed Comprehensive Plan to combat illegal immigration on 28 February 2002, in the Council's Plan for the management of external borders on 13 June 2002 and in the Return Action Programme agreed by the Council as a whole on 28 November 2002.
Tony Bunyan, Statewatch editor, comments:
"As we going to see people shackled to their seats on public trains and coaches or perhaps trains with "cattle trucks" chugging east, reminiscent of another time? How safe are migrants being transported in unmarked police cars or vans driven by plainclothes police officers going to be if they resist at any point? Will we ever know what happened to them if they do not arrive at their destination?
This proposal is indicative of a wider question, it is said that the EU tracks the whereabouts of every cow that leaves the Community to counter fraud but it has no idea where those expelled end up, whether they are alive or dead , free or imprisoned, fed or starving. Under this proposal responsibility ends when "the third country national has been finally removed from the territory of the Member States". Does the EU care more about cattle than people?"
Joint EU expulsion flights for forced "group returns"
EU governments have been using scheduled flights and the IOM (International Organisation on Migration) for "voluntary" returns for several years. The euphemisms "joint flights" or "group returns" by air usually refer either to large number of people being removed on a single flight or to "forced" returns where the migrant does not consent to their expulsion. Although a number of "joint flights" have been organised on a bilateral basis (eg: France and Germany) over the past few years it was the French government who took the lead in July 2002 for a "project" to: "rationalise expulsion measures, in particular by means of group returns" (Proposal for projects, French delegation, doc no: 11388/02, 29.7.02). France opened talks with Germany and the UK on the possibility of joint "European charters". This was followed by the Afghanistan Return Programme agreed last year which covers voluntary and "forced" expulsions carried out by the IOM and joint charter flights see Statewatch analysis: "Safe and dignified" return to Afghanistan.
The Italian Presidency, in another proposed Council Decision, seeks to formalise "joint EU flights" covering all countries of origin or the last "safe" third country passed through on a global basis (although not bound by this proposed Decision the UK can opt in at any point). This would allow "group removals" by EU governments "as efficiently as possible" by sharing "removal capacities" for "rational repatriation operations".
Under Article 5 of the proposed Decision the air carriers selected would be responsible for getting authorisation to land in the third country and to fly over other countries. The captain and crew would be obliged "during boarding, flight and landing" to provide the "necessary assistance to the third-country nationals and the escort personnel on the flight", could this mean the crew would be obliged to assist in the restraint of the migrant?
Article 6 says that data and intelligence on the migrants to be expelled should be provided in advance, for example, whether they have a criminal record and on their:
"behaviour while detained... prior to removal...(aggressive, rebellious or violent behaviour etc)"
Thus the "appropriate escort" should be capable of "dealing with violent behaviour which could endanger flight safety".
Such joint flights would amount to "collective expulsion" which are banned under Protocol 4 to the European Convention on Human Rights (although the UK, Spain and Greece have not ratified this), the ICCPR and the EU Charter of Fundamental Rights.
1. Draft initiative of the Italian Republic for a Council Directive on assistance in cases of transit by land in the context of removal measures by Member States against third-country nationals, 3.7.03, full-text: 10909/03 (pdf)
2. Draft initiative of the Italian Republic for a Council Decision on the shared organisation of joint flights for group removals of third-country nationals illegally present in the territory of two or more Member States, 3.7.03, full-text: 10910/03 and Manual: 10911/03 (pdf)
3. Proposal for projects, French delegation, doc no: 11388/02, 29.7.02
4. EU's Afghanistan Return Programme, see Statewatch analysis: "Safe and dignified" return to Afghanistan
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