Returning Illegal Immigrants

Returning illegal immigrants — common standards and procedures

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

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.

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 (1) 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.

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

DOCUMENTS

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)

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)

Return of illegal immigrants to their countries: joint flights

Decision 2004/573/EC — Joint flights for removals from the territory of two or more EU countries of illegal immigrants

It sets out the procedures when two or more EU countries cooperate to deport illegal immigrants by air from the EU.

KEY POINTS

Every EU country appoints a national authority responsible for organising or participating in joint flights.

The authority organising a joint flight must:
provide the relevant information to other EU countries;
select the airline involved and ensure all the contractual and practical arrangements are in place;
request and receive authorisations from the flight’s transit and destination countries;
make the appropriate arrangements, including financial ones, with other EU countries participating in the flight;
define the operational details and procedures, including the number of escorts required.

An EU country participating in a joint flight must:
inform the national authority organising the flight of its intention to participate;
provide a sufficient number of escorts;
ensure the presence of at least 2 of its representatives if the organising country provides all the escorts.

Organising and participating countries must:
ensure escorts and all those being deported have valid travel papers and other necessary documents, such as visas and certificates;
provide the flight arrangements to their embassies and consulates in the transit and destination countries involved to receive any necessary assistance.
The decision sets out detailed procedures and requirements for the five phases involved in removing illegal immigrants:
pre-return
pre-departure
in-flight
transit
arrival.
These cover issues such as check-in, security and the use of coercive measures*.

Operational cooperation between EU countries also covers:
transit assistance for removal flights;
organisation of flights for illegal immigrants subject to individual removal orders;
mutual recognition of expulsion decisions.
FROM WHEN DOES THIS DECISION APPLY?

It has applied since 7 August 2004.

BACKGROUND

Between 400,000 and 500,000 foreign nationals are ordered to leave the EU every year because they have entered, or are staying, illegally. Only 40 % are sent back home or to the country from which they entered the EU. Ensuring the return of illegal immigrants is essential to guarantee the credibility of legal migration.

DOCUMENTS

Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States of third-country nationals who are subjects of individual removal orders (OJ L 261, 6.8.2004, pp. 28-35)

Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ L 321, 6.12.2003, pp. 26-31)

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 149, 2.6.2001, pp. 34-36)

Expulsion decisions — mutual recognition by EU countries

Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of non-EU nationals

It aims to ensure that a decision by a European Union (EU) country to expel a non-EU national present in another EU country is respected and complied with.

KEY POINTS

The expulsion orders apply to non-EU citizens who:
constitute a serious and present threat to public order or to national security and safety;
have been convicted of an offence that carries a minimum one-year prison sentence;
are believed, on the basis of serious grounds or solid evidence, to have committed, or intend to commit, such offences;
fail to comply with national entry or residence rules.
If the individual concerned has a valid residence permit, the country imposing the expulsion must consult the country which issued the permit.

EU countries applying the legislation must:
respect human rights and fundamental freedoms;
ensure the individual concerned can appeal against the expulsion order;
protect personal data and data security;
use all appropriate forms of cooperation and information exchange to implement the legislation;
compensate each other for financial costs involved. The arrangements are set out in Council Decision 2004/191/EC

The country issuing the expulsion order must provide the country enforcing it with all the necessary documents as quickly as possible.

The country enforcing the decision must ensure this does not violate the relevant international or national rules.

The legislation does not apply to family members of EU citizens.

Council Directive 2003/110/EC sets out the transit arrangements for illegal non-EU residents removed by air via another EU country.
Directive 2008/115/EC sets common standards and procedures for returning non-EU nationals that stay illegally.
Regulation (EU) No 604/2013 (Dublin III Regulation) lays down the criteria and procedures to determine which EU country is responsible for examining an asylum application.
In September 2005, the Council of Europe issued 20 guidelines on forced returns.
FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 2 June 2001. EU countries had to incorporate it into national law by 2 December 2002.

BACKGROUND

UK and Ireland, although not in the Schengen passport-free area, apply the legislation and participate in its arrangements, as do Iceland and Norway, while Denmark does not.

DOCUMENTS

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (OJ L 149, 2.6.2001, pp. 34–36)

Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ L 321, 6.12.2003, pp. 26–31)

Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 60, 27.2.2004, pp. 55–57)

Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180, 29.6.2013, pp. 31–59)

Readmission agreements between the EU and certain non-EU countries

EU readmission legislation as follows:

Agreement and Decision 2005/809/EC between the EU and Albania
Agreement and Decision 2013/629/EU between the EU and Armenia
Agreement and Decision 2014/239/EU between the EU and Azerbaijan
Agreement and Decision 2007/820/EC between the EU and Bosnia and Herzegovina
Agreement and Decision 2013/522/EU between the EU and Cape Verde
Agreement and Decision 2011/118/EU between the EU and Georgia
Agreement and Decision 2004/80/EC between the EU and Hong Kong
Agreement and Decision 2004/424/EC between the EU and Macao
Agreement and Decision 2007/826/EC between the EU and Moldova
Agreement and Decision 2007/818/EC between the EU and Montenegro
Agreement and Decision 2007/817/EU between the EU and former Yugoslav Republic of Macedonia
Agreement and Decision 2010/649/EU between the EU and Pakistan
Agreement and Decision 2007/341/EC between the EU and Russia
Agreement and Decision 2007/819/EC between the EU and Serbia
Agreement and Decision 2005/372/EC between the EU and Sri Lanka
Agreement and Decision 2014/252/EU between the EU and Turkey
Agreement and Decision 2007/839/EU between the EU and Ukraine

WHAT IS THE AIM OF THESE AGREEMENTS AND DECISIONS?

Readmission of a country’s own nationals is an obligation under international customary law. To return persons illegally residing on their territory to their countries of origin, in particular when these persons do not have valid identification documents, EU countries count on the cooperation of non-EU countries to identify, re-document and readmit them.
EU readmission agreements provide a structured framework of cooperation between EU countries and non-EU countries by establishing rapid and effective procedures for identifying, re-documenting and returning persons originating from one of the parties, residing without authorisation in the territory of the other party.

By its decisions, the Council concludes the agreements on behalf of the EU.

KEY POINTS

Reciprocity

These agreements operate on reciprocity. The same rules apply to EU citizens, to the citizens of the other party to the agreement and, under certain conditions, to third-country nationals, i.e. persons holding a nationality other than that of either signatory party or stateless persons illegally present in the non-EU country concerned.
As stipulated in Protocol 21 to the Treaty on the Functioning of the European Union (TFEU), the United Kingdom and Ireland may choose to opt in or out of these agreements on a case-by-case basis. However, under Protocol 22 to the TFEU, Denmark has opted out of participating in justice and home affairs cooperation (of which these readmission agreements are part), with the exception of measures that relate to the Schengen acquis.
Own nationals

All EU readmission agreements cover detailed procedures for the identification, re-documentation and readmission of nationals illegally present on the territory the other parties. Many of the agreements also apply, with differing conditions, to:

minor unmarried children of such persons regardless of their place of birth or their nationality;
spouses of such persons, holding another nationality;
those persons residing in the EU who no longer hold the nationality of the other party concerned.
Third-country nationals and stateless persons

EU readmission agreements also cover commitments and procedures for the readmission of those third country nationals that have illegally entered the territory of one party by transiting the territory of the other party. For example, one party would need to readmit a person who is not its citizen if that person:

has illegally and directly entered the territory of one party from the other party;
holding, at the time of readmission application, a valid visa or residence permit for the country concerned.

This obligation will not apply if the person concerned:

has only been in airside transit via an international airport of the party concerned;
has been granted a visa or residence permit by one party unless:
they have also been issued a visa or residence permit by the other party that is valid for longer; or
the visa or permit was obtained using fake or forged documents; or
the conditions of the visa are not observed;
has the right to visa-free access to the territory of the party concerned.

Procedures

The party wishing to return a person who is not in possession of valid identity documents presents a readmission application to the other party concerned containing the information (including name, date of birth, evidence of nationality) detailed in the specific agreement.
Applications for third-country nationals and stateless persons are submitted to the competent authority of the country concerned within a specified period of time after the party became aware of the illegal situation of the person concerned.

A response to a readmission application must be received within a specified period usually within a month. Under the accelerated procedure, responses are usually required within a week. Reasons must be given for a refusal.

Once the party has agreed to readmission, a travel document must be issued by the authorities of the party concerned, regardless of the will of the person.

Some of the agreements also cover arrangements to be made in view of the return operation or regarding transit facilitation for returnees to other third countries (for example, the point of entry, possible escorts and other information relevant to the transfer).

The agreements also list various means of evidence to establish the nationality of a person and their illegal entry into the territory of the parties concerned.

FROM WHEN DO THE AGREEMENTS AND DECISIONS APPLY?

Act

Date of application

Date of entry into force

Agreement with Turkey

1.10.2014