Irregular Immigration in the
European Union: The Adoption
and Implementation of the
Controversial Returns Directive
(Directive 2008/115)
Diego Acosta
Centre of European Law
King’s College London
3 actors in the EU
• Good: Parliament. No legal power, open
stance towards migration.
• Bad: Council. Restrictive view, consider
migration as part of their sovereignty.
• Ugly: Commission. Open view, but not
“sexy enough” from the point of view of
the Council.
Commission Proposal
European Parliament
Council.
Opinion
Common position
“Trialogues”
• Trialogues: secret meetings between the
Council (the Presidency) and the EP (the
rapporteur) to arrive to first reading
compromises.
• Negotiations informal and opaque. Hence,
they enhance efficiency at the expense of
accountability.
• Contrary to the principle of openness and
visibility of proceedings of the EP.
The Returns Directive
• Directive on common standards and
procedures in Member States for returning
illegally staying third-country nationals.
• Criticisms:
– Detention up to 18 months.
– Re-entry ban up to 5 years. Both linked to:
– Voluntary departure only between 7 and 30
days.
Two questions
• Did the involvement of the European
Parliament produce a more open migration
policy with this Directive?
• Is the European Parliament changing its
rationale towards immigration? Is it
becoming “bad” and “ugly”?
Issues
• Scope
• Period of voluntary departure
• Re-entry ban
• Remedies
• Detention
• Unaccompanied minors
Re-entry ban.
• For a period not longer than 5 years.
• Some cases in which the re-entry ban may
be withdrawn.
• When should the re-entry ban be
imposed?
• What were the cases in which a re-entry
ban should not be imposed or withdrawn?
Re-entry ban.
• Optional.
• Compulsory.
• More cases in which it • Discretion from the
might be withdrawn.
MS not to impose or
withdrawn the reentry ban.
Re-entry ban.
• Compulsory in two cases:
– No period for voluntary departure granted.
– Obligation to return has not been complied with.
• MS have to consider withdrawing or suspending
the ban when the
– TCN has complied with the return decision.
– Victims of trafficking in human beings can not be
imposed a re-entry ban.
Detention.
• 6 months maximum limit.
• Custody orders controlled by judicial
authorities within 72 hours.
• What was the maximum period of time
that a TCN could be deprived of his/her
freedom?
• What controls should MS put in place in
case of detention ordered by an
administrative authority?
Detention
• 3 months maximum
•
except in some
specific cases where it
could be extended to
18 months.
48 hours.
• 6 months to
•
indefinite.
Speedy judicial review
in accordance with
national law.
Detention.
• 6 to 18 months.
• Provide for judicial review to be decided
expeditiously from the beginning of the
detention.
Voting in the Parliament
• Pragmatism
• Fear of the following French
Presidency
• Pressure from the respective national
governments
• Procedural constraints
Content of the Returns
Directive
• Period for voluntary departure: 7-30
days.
• Re-entry ban: up to 5 years.
• Possibility of detention: up to 18
months.
Implementation: Spain &
Italy
• Largest number of migrants received
since 2000.
• Large number of undocumented
migrants.
• Different regularization processes.
Implementation: Spain
• Voluntary departure: Now 7 to 30
days.
• Re-entry ban: Now up to 5 years.
• Detention: From 40 days before
to 60 now.
Implementation: Italy
• Entering or staying in Italy is a
crime punishable by a fine of 5 to
10 thousand Euros.
• Detention from two to six months.
Conclusions
• EP did not do enough although it
improved the Directive.
• Dangerous signal for the future of codecision process in this area.
• Questions involving the democratic
process in the EU.
• ECJ role important in the future. Case
Kadzoev C-357/09.
Conclusions
• Hence, Parliament still good but certainly
becoming worse and uglier.
• Implementation brings positive and
negative news from the point of view of
migrant’s rights.
• EU should think about the message it
sends to special partners (LAC).
• EU LAC meeting 18 May.
Thank you very much!
Comments, critiques:
Diego.acosta@kcl.ac.uk