First steps

Members of the European parliament are voting to give themselves a greater say on migration issues. By adopting the so-called return directive, parliament will take the first step towards becoming an equal partner with the council in the legislative process for decisions in the field of migration.

This opens up new possibilities for dealing with immigra¬tion questions. The directive introduces common standards and procedures for the repatriation of persons who are staying illegally in the territory of a member state.

The reasons why the stay of an individual is considered illegal may range from an expired visa, or the expiration, revocation or withdrawal of a residence permit, to a negative decision on an asylum application. Of course, people entering the EU illegally are also covered by the directive.

Member states may, however, decide not to apply the directive to parts of the latter group. People staying in so called transit zones, i.e. those who have been intercepted by border guards or any other competent authority and have never been granted a right to stay in a member state, are sometimes not consid¬ered as ‘staying on the territory’.

Therefore, they do not fall under the scope of the directive. Nevertheless, the directive provides for the well-being of those immigrants by under¬lining that all procedural and other safeguards shall be in no way less favourable for those people than the safeguards established in the directive.

Throughout the negotiation process, the positions of council and parliament have been conspicuously different. The outcome now is a compromise. The initial aim of the council was to have a legal act that would clearly state that any illegal stay should be ended through a fair and transparent procedure.

Up to now member states dealt differently with illegal immigration, and measures varied from mass legalisations that all but ignored whether immigrants were here illegally or not to very long detention periods before repatriation. Life in illegality is not easy. Illegal immigrants have no access to health services and cannot claim their rights in court, for example.

The labour markets have discovered them as cheap workers, putting up with ever lower wages and inhuman working conditions without ever being entitled to a pension. The situation of those immigrants resembles that of modern slaves and must be ended by any means necessary. It is primarily in the interest of immigrants themselves to resolve their status of illegality.

Parliament’s committee on civil liberties, justice and home affairs was aware of its responsibility. Regardless of political affiliation, members of the committee shared the belief that basic safeguards should assure the well-being of immigrants at all stages of the return process.

Those basic rights for the detainees include, for example, health care, access to education for minors, and the right to obtain legal advice with linguistic assistance if necessary and to receive visits from non-governmental organisations. Special safeguards have been established for families and children. Other than those basic rights, technical safeguards have also been established to guarantee a transparent and clearly defined process.

The general aim is direct repatriation. Detention should only be a last resort for those people to whom the following criteria apply: there is a strong chance that they will try to return again; there are no other measures available; and the immigrant is unwilling to cooperate, which might imply a risk of absconding.

However, the maximum period of detention may not exceed six months – although member states can extend this to up to 12 months in cases where the identification of the immigrant and the provision of the required documents for return are impossible due to a lack of cooperation by the immigrant.

Extremely long detention periods, as have previously existed in some member states in order to demoralize the individual, are prohibited. Despite the new rules for forced return, the main focus is on voluntary return. The member states must set a period of between seven and 30 days within which the migrant can return voluntarily to either his country of origin or any other third-country in which he or she will be accepted.

Even though there are still critical voices, the compromise found in April could be considered as offering a clear improvement in the situation of illegal immigrants living in the EU.

Both the representative of the council as well as most representatives of parliament said that they had found an acceptable middle course between a clear return procedure and the protection of immigrants’ interests. This is the first time the codecision procedure has been applied in this policy field.

Parliament’s success in maintaining several key points against the council’s initial wishes must not be underestimated, for it indicates the role that MEPs could play in future legislation in this field. We have made it clear that the EU will not tolerate illegal immigration – now we must turn our attention towards improving the lot of legal migrants as well.

• Previous article
• Next article