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. Good: Parliament. No legal power, open stance towards migration. Bad: Council. Restrictive view, consider migration as part of their sovereignty. 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. Ugly: Commission. Open view, but not “sexy enough” from the point of view of the Council.

Commission Proposal European Parliament Opinion Council. Common position

“Trialogues” Trialogues: secret meetings between the Council (the Presidency) and the EP (the rapporteur) to arrive to first reading compromises. 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. 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. 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. Directive on common standards and procedures in Member States for returning illegally staying third-country nationals. Criticisms: 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? 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”? Is the European Parliament changing its rationale towards immigration? Is it becoming “bad” and “ugly”?

Issues Scope Scope Period of voluntary departure Period of voluntary departure Re-entry ban Re-entry ban Remedies Remedies Detention Detention Unaccompanied minors Unaccompanied minors

Re-entry ban. For a period not longer than 5 years. For a period not longer than 5 years. Some cases in which the re-entry ban may be withdrawn. Some cases in which the re-entry ban may be withdrawn. When should the re-entry ban be imposed? When should the re-entry ban be imposed? What were the cases in which a re-entry ban should not be imposed or withdrawn? What were the cases in which a re-entry ban should not be imposed or withdrawn?

Re-entry ban. Optional. Optional. More cases in which it might be withdrawn. More cases in which it might be withdrawn. Compulsory. Compulsory. Discretion from the MS not to impose or withdrawn the re- entry ban. Discretion from the MS not to impose or withdrawn the re- entry ban.

Re-entry ban. Compulsory in two cases: 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 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. 6 months maximum limit. Custody orders controlled by judicial authorities within 72 hours. 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 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? 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. 3 months maximum except in some specific cases where it could be extended to 18 months. 48 hours. 48 hours. 6 months to indefinite. 6 months to indefinite. Speedy judicial review in accordance with national law. Speedy judicial review in accordance with national law.

Detention. 6 to 18 months. 6 to 18 months. Provide for judicial review to be decided expeditiously from the beginning of the detention. Provide for judicial review to be decided expeditiously from the beginning of the detention.

Voting in the Parliament Pragmatism Pragmatism Fear of the following French Presidency Fear of the following French Presidency Pressure from the respective national governments Pressure from the respective national governments Procedural constraints Procedural constraints

Content of the Returns Directive Period for voluntary departure: 7-30 days. Period for voluntary departure: 7-30 days. Re-entry ban: up to 5 years. Re-entry ban: up to 5 years. Possibility of detention: up to 18 months. Possibility of detention: up to 18 months.

Implementation: Spain & Italy Largest number of migrants received since Largest number of migrants received since Large number of undocumented migrants. Large number of undocumented migrants. Different regularization processes. Different regularization processes.

Implementation: Spain Voluntary departure: Now 7 to 30 days. Voluntary departure: Now 7 to 30 days. Re-entry ban: Now up to 5 years. Re-entry ban: Now up to 5 years. Detention: From 40 days before to 60 now. 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. Entering or staying in Italy is a crime punishable by a fine of 5 to 10 thousand Euros. Detention from two to six months. Detention from two to six months.

Conclusions EP did not do enough although it improved the Directive. EP did not do enough although it improved the Directive. Dangerous signal for the future of co- decision process in this area. Dangerous signal for the future of co- decision process in this area. Questions involving the democratic process in the EU. Questions involving the democratic process in the EU. ECJ role important in the future. Case Kadzoev C-357/09. ECJ role important in the future. Case Kadzoev C-357/09.

Conclusions Hence, Parliament still good but certainly becoming worse and uglier. 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. 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 should think about the message it sends to special partners (LAC). EU LAC meeting 18 May. EU LAC meeting 18 May.

Thank you very much! Comments, critiques: