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PURPOSE: to lay down a common set
of rules applicable to third‑country nationals staying illegally within
the territory of any Member State. LEGISLATIVE ACT:Directive 2008/115/EC of the European Parliament and of
the Council on common standards and procedures in Member States for returning
illegally staying third-country nationals. CONTENT: the Brussels European Council of 4 and 5 November 2004 called for the
establishment of an effective removal and repatriation policy, based on
common standards, for persons to be returned in a humane manner and with full
respect for their fundamental rights and dignity. To respond to this request, the European Parliament and
the Council have adopted, following an agreement reached at first reading, a
Directive setting out clear, transparent and fair rules to provide for an effective
return policy as a necessary element of a well managed migration policy. A
horizontal set of rules are established which are applicable to all
third-country nationals who do not or who no longer fulfil the conditions for
entry, stay or residence in a Member State. This Directive promotes and
encourages the voluntary return of illegal immigrants. The rules can
be summarised as follows: I. Scope and objective: this
Directive sets out common standards and procedures to be applied in Member
States for returning illegally staying third-country nationals, in accordance
with fundamental rights as general principles of Community law as well as
international law, including refugee protection and human rights obligations.
This Directive shall not prevent Member States from adopting a decision on
the ending of a legal stay together with a return decision and/or a decision
on a removal and/or entry ban in a single administrative or judicial decision
or act as provided for in their national legislation, without prejudice to the
procedural safeguards available under Chapter III of this Directive and under
other relevant provisions of Community and national law. II. Termination of illegal stay: the principle of this Directive is to
provide a 2-step procedure: firstly a “return decision” which opens up
a “voluntary return” period, which may be followed by a “removal decision”
ending in “explusion”. 1) Return
decision: Member States shall issue a return decision to any third-country national staying illegally on their territory,
without prejudice to the exceptions referred to in the Directive. Third-country
nationals staying illegally on the territory of a Member State and holding a
valid residence permit or other authorisation offering a right to stay issued
by another Member State shall be required to go to the territory of that
other Member State immediately. Member States may at any moment decide to
grant an autonomous residence permit or other authorisation offering a right
to stay for compassionate, humanitarian or other reasons to a third-country
national staying illegally on their territory. In that event no return
decision shall be issued. If a third-country national staying illegally on
the territory of a Member State is the subject of a pending procedure for renewing
his or her residence permit or other authorisation offering a right to stay,
that Member State shall consider refraining from issuing a return decision,
until the pending procedure is finished. The length of the entry ban shall be determined
with due regard to all relevant circumstances of the individual case and shall
not in principle exceed five years. It may however exceed five years
if the third-country national represents a serious threat to public policy,
public security or national security. Member States may refrain from issuing,
withdraw or suspend an entry ban in individual cases for humanitarian
reasons. Member States may withdraw or suspend an entry ban in individual cases
or certain categories of cases for other reasons. Voluntary departure: a return decision shall provide for an appropriate
period for voluntary departure of between seven and thirty days. The
time period provided for in the first subparagraph shall not exclude the
possibility for the third-country nationals concerned to leave earlier. The
period for voluntary departure may be extended by an appropriate period,
taking into account the specific circumstances of the individual case, such as
the length of stay, the existence of children attending school and the
existence of other family and social links. If there is a risk of absconding,
or if an application for a legal stay has been dismissed as manifestly
unfounded or fraudulent, or if the person concerned poses a risk to public
policy, public security or national security, Member States may refrain from
granting a period for voluntary departure, or may grant a period shorter than
seven days. 2) Removal:
where Member States use - as a last resort – coercive measures to carry
out the removal of a third-country national who resists removal, such
measures shall be proportionate and shall not exceed reasonable force. They
shall be implemented as provided for in national legislation in accordance
with fundamental rights and with due respect for the dignity and physical integrity
of the third-country national concerned. In carrying out removals by air,
Member States shall take into account the Common Guidelines on security
provisions for joint removals by air annexed to Decision
2004/573/EC. Member States shall provide for an effective forced-return monitoring
system. Moreover, Member States may postpone removal for an
appropriate period taking into account the specific circumstances of the individual
case. Return and removal of unaccompanied minors: before deciding to issue a return decision
in respect of an unaccompanied minor, assistance by appropriate bodies other than
the authorities enforcing return shall be granted with due consideration
being given to the best interests of the child. Before removing an
unaccompanied minor from the territory of a Member State, the authorities of
that Member State shall be satisfied that he or she will be returned to a member
of his or her family, a nominated guardian or adequate reception facilities
in the State of return. More
favourable provisions: this Directive shall be without prejudice to any provision which
may be more favourable for the third-country national, laid down in the
Community acquis relating to immigration and asylum. It shall be without
prejudice to the right of the Member States to adopt or maintain provisions
that are more favourable to persons to whom it applies provided that such
provisions are compatible with this Directive. Non-refoulement, best interests of the child, family life
and state of health:
provisions are introduced so that the Directive shall take due account of the
best interests of the child; family life; the state of health of the
third-country national concerned, and respect the principle of
non-refoulement. III. Procedural safeguards:the Directive sets out a number of procedural
safeguards such as: - the right to have a written or oral
translation of the main elements of decisions related to return including
information on the available legal remedies in a language the third-country national
understands or may reasonably be presumed to understand; - the right to be afforded an effective remedy
to appeal against or seek review of decisions related to return. Member States
shall ensure that the necessary legal assistance and/or representation is
granted on request free of charge (Member States have until 24 December 2011
to comply with this provision); - the right to family unity, emergency medical
care, basic education to minors, ….pending their voluntary return or their
removal. IV.
Detention for the purpose of removal: unless
other sufficient but less coercive measures can be applied effectively in a
specific case, Member States may only keep in detention a third-country
national who is the subject of return procedures in order to prepare the
return and/or carry out the removal process, in particular when there is a risk
of absconding or the third-country national concerned avoids or hampers
the preparation of return or the removal process. Any detention shall be for
as short a period as possible and only maintained as long as removal
arrangements are in progress and executed with due diligence. Detention shall
be ordered in writing with reasons being given in fact and in law. When detention
has been ordered, Member States shall either provide for a speedy judicial
review of the lawfulness of detention. The third-country national concerned
shall be released immediately if the detention is not lawful. In every
case, detention shall be reviewed at reasonable intervals of time either on
application by the third-country national concerned or ex officio. When it
appears that a reasonable prospect of removal no longer exists for legal or
other considerations or the conditions no longer exist, detention ceases to
be justified and the person concerned shall be released immediately. Duration of the detention period: the maximum duration of detention shall not
exceed a limited period of six months. This period may be extended for a
limited period not exceeding a further twelve months in accordance with
national law in cases where regardless of all their reasonable efforts the
removal operation is likely to last longer owing to a lack of cooperation by
the third-country national concerned, or delays in obtaining the necessary
documentation from third countries. Conditions of detention: detention shall take place as a rule in specialised
detention facilities. Where a Member State cannot provide accommodation in a
specialised detention facility and is obliged to resort to prison
accommodation, the third-country nationals in detention shall be kept
separated from ordinary prisoners. Particular attention shall be paid to the
situation of vulnerable persons. Emergency health care and essential treatment
of illness shall be provided.Relevant and competent national, international and nongovernmental organisations
and bodies shall have the possibility to visit detention facilities. Such
visits shall be subject to authorisation.Third-country
nationals in detention shall be allowed - on request - to establish in due
time contact with legal representatives, family members and competent
consular authorities. Detention of minors and families: unaccompanied minors and families with
minors shall only be detained as a measure of last resort and for the shortest
appropriate period of time. Families detained pending removal shall be
provided with separate accommodation guaranteeing adequate privacy. Minors in
detention shall have the possibility to engage in leisure activities,
including play and recreational activities appropriate to their age, and
shall have, depending on the length of their stay, access to education. Unaccompanied
minors shall as far as possible be provided with accommodation in institutions
provided with personnel and facilities which take into account the needs of persons
of their age. The best interests of the child shall be a primary
consideration in the context of the detention of minors pending removal. Emergency situation: in situations where an exceptionally large number of third-country
nationals to be returned places an unforeseen heavy burden on the capacity of
the detention facilities of a Member State or on its administrative or
judicial staff, such a Member State may, as long as the exceptional situation
persists, decide to allow for periods for judicial review longer than those provided
for in this Directive. These specific situations shall not be interpreted as
allowing Member States to derogate from their general obligation to take all
appropriate measures to ensure fulfilment of their obligations under this
Directive. Reporting:
the Commission shall report every three years to the European Parliament and
the Council on the application of this Directive in the Member States and, if
appropriate, propose amendments.The Commission shall report for the first time by 24
December 2013 focusing in particular on the additional financial and
administrative impact in Member States. Territorial application: Norway, Iceland, Switzerland and Liechtenstein are
associated with the implementation of this Directive in accordance with the
bilateral agreements concluded with the EU on the Schengen Acquis. The United
Kingdom and Ireland shall not participate in the adoption or the
implementation of the text, in accordance with the Protocol annexed to the
Treaty on the European Union. Denmark will not participate either in the
adoption of this text but may decide within a period of six months after the adoption
of this Directive, whether it will implement it in its national law. ENTRY INTO FORCE: 13.01.2009.This Directive replaces the provisions of Articles 23 and
24 of the Convention implementing the Schengen Agreement. TRANSPOSITION: 24.12.2010.
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