The draft directive was adopted by Parliament under the co-decision procedure by 369 votes to 197, with 106 abstentions. The House approved the compromise amendments tabled by the EPP-ED group. Other amendments, by the PES, Greens/EFA and GUE/NGL groups, seeking to make the legislation more favourable to individuals who are the subject of an expulsion order, were thrown out, as was a proposal to reject the directive outright, which was tabled by the last two groups.
The purpose of the legislation is to lay down EU-wide rules and procedures on the return of illegal immigrants. It covers periods of custody as well as re-entry bans but also includes a number of legal safeguards. Member States will be banned from applying harsher rules to illegal immigrants but allowed to keep or adopt more generous rules. In any case, this EU legislation applies only after a decision has been taken by the national authorities to deport an illegal immigrant: each Member State retains the power to decide in the first place whether it wishes to regularise or deport the immigrant.
Six-month detention period, with possible 12-month extension
Under the legislative text as adopted today, where a decision is taken to deport an individual, a two-step approach follows. First, the deportation decision is immediately followed by a voluntary departure period, limited to between seven and thirty days.
Then, if the deportee does not leave, a removal order will be issued. If the removal order is issued by a judicial authority which believes the individual in question might abscond, the person can be placed in custody. At present detainees can be held indefinitely in some Member States, including the UK (Ireland has a maximum of 8 weeks), but the directive lays down a maximum period of custody of six months, which can be extended by a further 12 months in certain cases. An amendment by the PES group, seeking to reduce this to three months plus a further three months, was rejected.
If a person is placed in custody following an administrative decision, this decision must be approved by the courts "as speedily as possible". The original draft legislation required a court order within 72 hours, while the EP Civil Liberties Committee wanted 48 hours. A PES amendment seeking to restore the deadline of 72 hours was rejected.
A re-entry ban would apply for five years maximum if the person is deported after the voluntary return period has expired, or longer if the individual represents a serious threat to public safety. However, Member States retain the right to waive, cancel or suspend such bans.
UK and Ireland have not opted-in
The UK and Ireland are not affected by the directive because they have not opted into this area of Community law.
The UK government argues that a strong returns regime in the EU is in everyone's interest, including the UK. But it is not persuaded that this Directive delivers the strong returns regime that the EU needs and that's why the UK government has chosen to exercise its right not to participate in this proposal.
Several Member States, argues the UK government, have made the point in the discussions that the Directive makes returning illegally staying third country nationals actually more difficult and more bureaucratic - by introducing restrictions on detention, obligations to provide legal aid to irregular migrants, and increasing the possibilities for challenging the return decision - over and above the strong protections already in place in EU law for refugees and asylum seekers.
Children and families to be detained only as a last resort
The directive also states that children and families must not be subject to coercive measures and can only be held in custody as a last resort. Unaccompanied minors may only be deported if they can be returned to their family or to "adequate reception facilities" in the state to which they are sent.
An article inserted by the Council provides for greater flexibility for the authorities in "emergency situations". If an "exceptionally large number" of third-country nationals places "an unforeseen heavy burden" on the administrative or judicial capacity of a Member State, that state may decide to allow longer periods for judicial review as well as less favourable conditions of detention.
Member States must also take account of the situation of the individual’s country of origin, under the principle of non-refoulement (which states that no state may send a refugee to a country where his/her life or liberty may be endangered). Following a recent ruling by the Court of Justice, the European Parliament will in future decide jointly with the Council (under co-decision) which countries are deemed “safe”.
Legal aid subject to the terms of the "procedure" directive
The directive provides for legal aid to be granted to illegal immigrants who have no resources, albeit “in accordance with relevant national legislation or rules regarding legal aid" and with the “procedure directive” of 2005 on aid to asylum seekers.
The Community return fund, set up for the period 2008-13 with funding of €676 million, may also be used to finance legal aid.
Once the directive is adopted, Member States will have 24 months to bring it into effect. First of all, ministers have to approve the agreement officially at a Council meeting in July.