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Common standards and procedures for returning illegal immigrants

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Common standards and procedures for returning illegal immigrants

This directive establishes common standards and procedures for EU countries, whereby illegally staying non-EU nationals may be removed from their territories. It lays down provisions for terminating illegal stays, detaining non-EU nationals with the aim of removing them and procedural safeguards.

ACT

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.

SUMMARY

This directive provides EU countries with common standards and procedures for returning non-EU nationals staying illegally on their territories, with certain exceptions. EU countries must however ensure that the treatment and level of protection of non-EU nationals excluded from the scope of the directive corresponds at least to certain of its provisions on coercive measures, removal, health care and detention. In all cases, EU countries must ensure that any return of non-EU nationals does not put them in danger (a principle known as non-refoulement) and take into consideration the best interest of children, family life and the health of the person concerned.

A return decision must be issued by an EU country to the non-EU national staying illegally on its territory. If the non-EU national has a valid residence permit or equivalent from another EU country, s/he must immediately return to that country. If another EU country takes back an illegally staying non-EU national under a bilateral agreement, that country will be responsible for issuing the return decision. Due to compassionate, humanitarian or other reasons, an EU country may provide an illegally staying non-EU national with an autonomous residence permit or an equivalent right to stay. EU countries should not issue return decisions before the pending procedures for renewing such permits have come to an end.

The return decision must allow for a period of voluntary departure of between seven and 30 days for the illegally staying non-EU national. EU countries may require that this period is applied for by the person in question. In particular circumstances, the period for voluntary departure may be prolonged. EU countries may also impose certain obligations on the non-EU national for the duration of this period in order to prevent him/her from fleeing. When the illegally staying non-EU national risks fleeing, has submitted a fraudulent application or poses a risk to public/national security, the EU country may grant a shorter period of voluntary departure or no period at all.

If no period is granted, or if the non-EU national has not complied with the return decision within the period granted, the EU country must enforce his/her removal. Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove non-EU nationals. The removal of non-EU nationals must be postponed if it risks putting their lives in danger (the principle of non-refoulement) or if the return decision has been temporarily suspended. EU countries may also postpone removals in particular circumstances.

An entry ban may be given together with a return decision. However, it must be provided when no period of voluntary departure is granted or when the illegally staying non-EU national has not complied with the return decision. The duration of the entry ban must be set on a case-by-case basis, taking into consideration the particular circumstances of the person concerned. In principle, the duration may not be longer than 5 years, unless the third-country national poses a threat to public/national security. EU countries may choose to withdraw or suspend an entry ban for particular reasons. In humanitarian cases, they may even decide to not issue such a ban.

Decisions on returns, entry bans and removals must be provided in writing and accompanied by information on available remedies. On request, the EU country must provide a translation of these to the non-EU national, unless it issues decisions by means of a standard form.

Non-EU nationals must be given the possibility to appeal against or seek review of return decisions, as well as to obtain legal assistance/representation free of charge. The decisions are to be reviewed by a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. The review body will have the power to temporarily suspend the enforcement of the decisions.

In specific cases, and when less coercive measures are not sufficient, EU countries may detain a non-EU national during the return procedure if s/he risks fleeing or avoids/obstructs the preparation of return or the removal process. Detentions are ordered in writing by administrative or judicial authorities and must be reviewed regularly. The detention period must be as short as possible and not more than six months. Only in particular circumstances, when the removal of a non-EU national might exceed the time limit set, EU countries may prolong detention by a maximum of 12 months. Specialised detention facilities are to be used for the purpose; however, if this is not feasible, EU countries may use prison accommodation with separate quarters for the non-EU nationals.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 2008/115/EC

13.1.2009

24.12.2010 (24.12.2011 for Article 13(4))

OJ L 348 of 24.12.2008

RELATED ACTS

Communication from the Commission to the Council and the European Parliament on EU Return Policy COM(2014) 199 final of 28.3.2014.

This Communication responds to the Commission’s obligation to submit a report to the European Parliament and the Council on the implementation of the Return Directive, as well as to the political commitment made by the Commission when the amended FRONTEX Regulation was adopted in 2011 to report on the monitoring of return operations coordinated by FRONTEX

The communication reviews the progress made since the adoption of the Return Directive. It concludes that all EU countries have introduced important legislative and practical changes to establish fair and transparent rules and improve the way return procedures are undertaken. However, it notes that further progress is needed to ensure that all guarantees provided for in the directive are evenly implemented across the EU. Further work is needed in regard to (i) ensuring better implementation of the existing rules; (ii) introducing more consistent and fundamental rights-compatible practices (for example, common guidelines); (iii) developing dialogue and cooperation with non-EU countries (the EU's Global Approach to Migration and Mobility); (iv) improved operational cooperation between EU countries on return (via the European Migration Network platform); (v) a greater role for Frontex in the field of joint return operations.

Last updated: 16.06.2014

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