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Summaries of EU Legislation

Returning illegal immigrants — common standards and procedures

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Returning illegal immigrants — common standards and procedures

 

SUMMARY OF:

Directive 2008/115/EC – common standards and procedures for returning illegally staying non-EU nationals

WHAT IS THE AIM OF THE DIRECTIVE?

It aims to ensure the EU has an effective and humane return policy as a necessary element of a well-managed migration policy.

It establishes a common set of rules for the return of non-EU nationals who do not or who no longer fulfil the conditions for entry, stay or residence within the territory of any EU country, and the related procedural safeguards, while encouraging the voluntary return of illegal immigrants.

KEY POINTS

Termination of illegal stay

The illegal stay is terminated in a 2-step procedure:

  • 1.

    firstly a ‘return decision’ which opens up a ‘voluntary departure’ period;

  • 2.

    then, if necessary, a ‘removal decision’, possibly with detention, ending in ‘expulsion’.

Return decision

Unless there are compassionate, humanitarian or other reasons not to do so, or there is a pending procedure for renewing a residence permit, an EU country must issue a return decision 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, he/she must immediately return to that country.

If another EU country takes back an illegally staying non-EU national under a bilateral agreement, that country is responsible for issuing the return decision.

The return decision may allow for a period of voluntary departure of between 7 and 30 days for the illegally staying non-EU national. In certain circumstances, this period may be extended; it may also be shortened and even not granted, namely when there is a risk that the illegally staying non-EU national:

  • will flee and thus will not be available for return;
  • has submitted a fraudulent application; or
  • poses a risk to public/national security.

During the period of voluntary departure, certain obligations may be imposed on the non-EU national in order to prevent him/her from fleeing.

An entry ban may be given together with a return decision, 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 is set on a case-by-case basis and may not be longer than 5 years, unless the non-EU national poses a threat to public/national security.

Removal

If no period is granted, or if the non-EU national has not complied with the return decision within the period granted for voluntary return, the EU country must enforce his/her removal, except in particular circumstances where the removal may be postponed. 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.

Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove non-EU nationals.

Detention for the purposes of removals

Under certain conditions – and with due regard to certain safeguards including judicial review – EU countries may detain a non-EU national during the return procedure if there is a risk that he or she will flee or avoids/obstructs the preparation of return or the removal process.

The detention period may not be longer than 6 months.

Specialised detention facilities are to be used or, if this is not feasible, prison accommodation with separate quarters.

Procedural safeguards

The directive sets out a number of procedural safeguards:

  • information for the non-EU national;
  • their right of appeal;
  • legal assistance and representation;
  • linguistic assistance, if necessary.

EU countries must also respect the right to family unity and provide emergency medical care, basic education to minors and pay attention to the special needs of vulnerable persons pending their voluntary return or removal.

Unaccompanied minors

Before deciding to issue a return decision in respect of an unaccompanied minor, assistance must be given by appropriate bodies in the best interests of the child. Before an EU country removes an unaccompanied minor from its territory, it must ensure that he or she will be returned to a member of his or her family, a nominated guardian or that appropriate reception facilities in the country of return are available.

The directive seeks to limit the detention of unaccompanied minors and families and sets out appropriate detention conditions.

General rules

Some categories of non-EU nationals may be excluded from the scope of the directive, such as those who are apprehended in connection with illegal border crossing. EU countries must however ensure that the treatment and level of protection of those persons corresponds at least to certain of its rules 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;
  • take into consideration the best interests of children, family life and the health of the person concerned.

To which countries does the directive apply?

The directive applies to all EU countries except Ireland and the United Kingdom and the following non-EU Schengen Area countries: Iceland, Liechtenstein, Norway and Switzerland.

Implementation and related acts

The European Commission must report every 3 years on the directive’s application in the EU countries and, if appropriate, propose amendments.

Regulation (EU) 2016/1953 establishes a uniform European travel document for the return of illegally staying non-EU nationals (European travel document for return). This document is valid for a single journey up until the time of arrival in the country of return of the non-EU national subject to a return decision issued by an EU country.

In 2017, the Commission published Recommendation (EU) 2017/432 to the EU countries on making returns more effective when implementing the directive, as well as a Recommendation (C(2017) 6505) establishing a common ‘Return Handbook’ to be used by EU countries when carrying out return-related tasks. It also proposed new measures on return policy in the form of a renewed Action Plan on Return and a set of recommendations to EU countries.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 13 January 2009. It had to become law in the EU countries by 21 December 2010, except for the rules on free legal assistance and/or representation for which the deadline was 24 December 2011.

BACKGROUND

For more information, see:

KEY TERMS

Refoulement: the act of forcing refugees or asylum seekers to return to a country where they are likely to face persecution

MAIN DOCUMENT

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 (OJ L 348, 24.12.2008, pp. 98–107)

RELATED DOCUMENTS

Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return-related tasks (OJ L 339, 19.12.2017, pp. 83-159 )

Commission Recommendation (EU) 2017/432 of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council (OJ L 66, 11.3.2017, pp. 15-21)

Communication from the Commission to the European Parliament and the Council on a more effective return policy in the European Union — A renewed action plan (COM(2017) 200 final, 2.3.2017)

Regulation (EU) 2016/1953 of the European Parliament and of the Council of 26 October 2016 on the establishment of a European travel document for the return of illegally staying third-country nationals, and repealing the Council Recommendation of 30 November 1994 (OJ L 311, 17.11.2016, pp. 13-19)

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

last update 20.02.2018

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