EU Directive 2008/115/EC: a general introduction

EU 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 (so called “Returns Directive”) is one of the most relevant pieces of legislation in our field of interest. Indeed, this Directive, as stated in the Preamble (§2), aims at establishing an effective European removal and repatriation policy with regard to third-country nationals whose immigration status is irregular; such policy should be based on common standards in order to ensure that persons are returned in a humane manner and with full respect for their fundamental rights and dignity.[1] However, as emerges from Article 1, while the Directive also aims at ensuring respect of fundamental human rights by Member States carrying out removals of illegally staying migrants, its principal objective is mainly to establish “common standards and procedures” to guarantee effective repatriation of such migrants.[2] The Directive has therefore been widely criticized - by NGOs, non-EU States (in particular, Latin American States[3]) and UN agencies - for its excessive focus on ensuring effective removal of irregular migrants and its lack of attention for the protection of fundamental human rights, in particular with regard to the right to freedom, the rights of children and the principle of non-refoulement; critics of this instrument have renamed it the “expulsion Directive.”[4] Among the opponents to this instrument we may count, for instance, the UN Office of the High Commissioner for Refugees, which adopted a Position on the Proposal for a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals;[5] in this Position, the UNHCR went as far as to state that it regrets that the text “does not incorporate all the safeguards necessary to ensure that returns take place in safety and dignity” and that it therefore is “not in a position to support the current proposal.” Moreover, ten experts of the Special Procedures of the UN Human Rights Council also expressed, in a letter to the Presidency of the Council of the European Union at the time (France), their concerns regarding the proposal, in particular with regard to the duration of the detention, the procedure of judicial review, and the possibility to detain unaccompanied minors, human trafficking victims, as well as other vulnerable persons. The Experts also recalled, in more general terms, that irregular migrants are not criminals and that, as a rule, they should not be detained at all.[6]

The negotiation process which led to the adoption of the final text - widely different from that initially proposed by the Commission, in most cases to the detriment of effective recognition and protection of human rights - has also been analyzed in detail, often leading to strong criticism of the role of the European Parliament: the Directive is the first EU instrument in the field of immigration and asylum policy to have been adopted following the co-decision procedure (now ordinary legislative procedure) and its contents show, according to some Authors, that the increased role of the Parliament does not necessarily result in the adoption of a more human-rights centered immigration policy.[7] It seems that part of the criticism that the Directive attracted is due to the very high expectations on what the European Parliament could achieve, in terms of respect for human rights, if granted a prominent role in the adoption of EU legislation: such expectations have clearly proven too high. Indeed, in a field such as that of immigration policies, widely differing national practices and the interest of States in maintaining broad discretion and wide powers have, in this case, hindered the Parliament from making full use of its powers. The very fact of the adoption of the Directive was in no way obvious: while the European Council held in Brussels in 2004 had called for the Commission to submit a proposal on return and repatriation of irregularly staying third-country nationals, the Council proved more reluctant to accept the necessity of adopting such an instrument at the European level, thus depriving Member States of their, up to that point almost unrestricted, sovereignty with regard to the treatment of irregular migrants and to the rules concerning their expulsion. Thus, during the German Presidency in 2007, a proposal was submitted which would have left almost every detail to the States’ discretion, thus having a very limited harmonizing effect;[8] among the reasons which finally led to the adoption of the Directive in its final text was the decision, taken by the European Parliament, to freeze the budget with regard to the European Return Fund until a Directive aimed at harmonizing national return procedures was adopted.[9] Thus, the adoption of the Directive may be seen as a success in itself – even though its content led some Authors to claim that it might have been better to adopt no Directive at all. [10]

An analysis of the Directive: its general features

The Returns Directive aims at setting out common standards and procedures with regard to the repatriation of irregularly staying third-country nationals; in particular, it provides for a complex procedure which gives preference to voluntary repatriation over forced returns.[11] One of the most important provisions of the Directive is the establishment of a regime of EU-wide entry bans:[12] these apply to the whole territory of the EU and are mandatory in a number of cases. Moreover, the Directive provides for some procedural safeguards (such as the right of appeal against any return decision) and for common rules on the detention of third-country nationals whose removal needs to be enforced (including provisions on the maximum length of such detention, its requirements and conditions and the procedural safeguards that need to be granted to the detainees). These rules, however, do not provide for “common” standards and procedures (as stated in article 1), but merely for “minimum” standards:[13] broad discretion is left to States in implementing the Directive, as clarified for instance by article 4(3), which provides that the Directive “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.” Thus, while Member States must adopt legislation transposing all mandatory rules of the Directive (that is, all “shall” provisions), they are allowed to adopt or maintain more favourable legislation with regard to any provision which is not mandatory.[14] However, the Directive has also been criticized as it might give rise to what is informally called “a race to the bottom:” its adoption might induce member States having higher human rights standards and more favourable provisions to amend them, lowering their standards to the minimum rules and guarantees mandated by EU law. In an attempt to avoid such a result, the Directive includes the aforementioned provision on more favourable rules; moreover, the Council formally stated that “the implementation of this Directive should not be used in itself as a reason to justify the adoption of provisions less favourable to persons to whom it applies.”[15] However, the effectiveness of such a statement is to be doubted, as it clearly has no binding effect:[16] indeed, it did not prevent the Italian Government from declaring that the extension of the maximum detention period from 60 to 180 days was in line with EU standards.[17]

It is not the aim of this Report to examine in detail all provisions of the Directive;[18] however, an analysis of the return and repatriation procedure envisaged by this instrument is needed in order to evaluate whether Italian law complies with the standards set by EU legislation. Thus, in this Report we will examine, in general terms, the procedure set out by the Directive, while paying specific attention to the provisions whose application in Italy seems to be particularly problematic. One last general remark is still needed: as the deadline to transpose the Directive has expired on 24 December 2010,[19] States whose legislation does not comply with it may be subject to an infringement procedure as well as to any other instrument available in the European legal system in order to ensure compliance with its provisions. Moreover, the Directive might, at least in part, have direct effect in member States: according to the ECJ’s case-law, provisions of Directives for which the deadline for transposition has expired may be invoked directly against a State in national proceedings if they are unconditional and sufficiently clear.[20] It is clear that such direct effect may be given to many of the provisions of the Returns Directive, in so far as they establish minimum guarantees for third-country nationals concerned: thus, for instance, a person whose pre-return detention lasts longer than 6 months might invoke the Directive directly against the State in order to be released.

Scope of application of the Directive

One of the issues which have given rise to wide criticism is the scope of application of the Directive, as set out by article 2. According to the original proposal submitted by the Commission, the Directive should have applied to any irregularly staying third country national, although States could decide not to apply it to those who were refused entry in a transit zone of a Member State;[21] during the negotiations, however, this rule was amended. The final text of the Directive thus allows States to exclude two categories of irregularly staying third-country nationals from the scope of application of national legislation adopted to implement this instrument: on the one hand, according to article 2(2)(a), those who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code,[22] or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorization or a right to stay in that Member State; on the other hand, according to article 2(2)(b), those who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. However, as a result of a compromise between the Council and the Parliament, article 4(4) lists a number of minimal rights and guarantees which have to be granted even to immigrants who are excluded from the scope of application of the Directive in accordance with article 2(2)(a): in particular, States shall ensure respect for the principle of non-refoulement and a level of protection no less favourable than that set out in some specifically listed provisions of the Directive.[23] Wide criticism has been devoted to the language of article 2(2)(a): indeed, while it seems to only refer to those third-country nationals who are intercepted or apprehended at the moment of their irregular border-crossing, or immediately afterwards, its implementation is clearly problematic, as there are no clear rules on its application by member States and as its language is too vague and ambiguous. Indeed, according to one possible interpretation of this rule, States might decide to exclude any third country national apprehended in proximity of their national borders and whose entry in their territory is irregular, thus giving the provision a very broad scope of application;[24] according to its critics, the Directive may even be interpreted as allowing for the exclusion from its scope of application of all third-country nationals who entered the EU irregularly.[25]

Another problematic issue is that concerning the interpretation of article 2(2)(b): indeed, persons who are expelled as a consequence of a criminal sanction, or of an extradition procedure, may be entirely excluded from the scope of application of the Directive. While it seems that the lack of any reference to the minimum rights that have to be granted to such irregularly staying third-country nationals in article 4 may be explained given the high standards of protection of human rights in criminal trials to which EU States have committed themselves,[26] it is unclear how this provision needs to be applied. Indeed, in States which criminalize irregular migration and provide for the detention and expulsion of third-country nationals who are irregularly present on their territory as a criminal sanction, article 2(2)(b) might allow for a complete disapplication of the Directive itself. Indeed, in States which criminalize irregular entry and stay of third-country nationals and provide for their detention and expulsion as criminal sanctions to be applied based on their irregular status, the whole of the procedural rights and guarantees granted by the Directive no longer applies to any migrant. Although fundamental rights related to the application of criminal law are, to a certain extent, broader than those granted in the Directive,[27] this does not hold true for every provision of the latter – for instance, criminal law guarantees do not impose any limit to the maximum length of detention for persons convicted of irregularly entering the territory of a Member State, or of overstaying once their residence permit has expired. The issue of the relationship between the Directive and national criminal law, in particular with regard to the grounds for exclusion listed in article 2(2)(b), will be analysed more in detail in the Chapter on the Directive’s implementation in Italy. For the moment, it might suffice to recall that Italian judges have filed a number of requests for a preliminary ruling to the Court of Justice, asking whether national criminal legislation allowing for a longer detention period than that allowed for by the Directive (articles 15 and 16) for the crime of failure to comply with a return order is compatible with the Directive itself, thus calling into question the exact interpretation of article 2(2)(b).

Termination of illegal stay

Chapter II of the Directive, entitled “termination of illegal stay”, establishes the procedural rules to be applied in the removal process of illegally staying migrants. Before proceeding to examine these rules, a preliminary remark seems to be necessary: according to article 3(3), the term “return” means the process of a third-country national going back - whether in voluntary compliance with an obligation to return, or enforced - to his or her country of origin, or a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted. Thus, the word return does not necessarily imply that the person concerned will go back to his/her country of origin, as the migrant might also be returned to another country, including any country of transit or, with the consent of the person and State concerned, a third country.[28]

Firstly, the general rule, according to article 6(1), is that States must issue a return decision to any third-country national illegally staying on their territory: article 6 is a “shall” provision, which implies that the adoption of a return decision is mandatory, save in those cases which are listed in paragraphs 2 – 5 of the Directive and which are the only admissible exceptions to the general rule.[29] Thus, whenever a third-country national (as defined in article 3[30]) is illegally present on the territory of a Member State, the latter is required to issue a return decision, that is - in the language of article 3(4), - an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return. The mandatory nature of the duty to issue a return decision gives rise to a number of problems, in particular as it is difficult to coordinate article 6 with Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals:[31] indeed, while this Directive allows the State where a third-country national is found to recognize and enforce the expulsion decision issued against him by another Member State, the Returns Directive still obliges the first State to issue another return decision, thus rendering Directive 2001/40 completely useless. Indeed, while according to the original proposal by the Commission this Directive should have been repealed at the moment of the entry into force of the Returns Directive,[32] this provision has not been included in the final text; thus, both Directives are still in force, which renders an interpretation according to the “effet utile” principle necessary.[33]

Article 6 also includes a number of exceptions to the general rule stated in para. 1: in particular, a return decision is not to be issued if the person has a right to stay in the territory of another Member State (in which case, the person shall be required to move to the territory of that State immediately), while States may decide not to issue a return decision if the person is taken back by a different Member State under pre-existing bilateral agreements or arrangements, if the person has requested renewal of his/her residence permit or authorization and the procedure for its renewal is pending,[34] or if the State decides to grant the person a permit or other authorization for compassionate, humanitarian or other reasons. According to article 6(4), thus, a State may decide not to issue a return decision for humanitarian reasons: in this case, however, the State must grant the person an autonomous right to stay. This provision seems to be aimed at ensuring that no third-country national finds himself in a “limbo”, where he is not to be repatriated but has no residence permit or authorization and thus may not justify his presence in the member State nor provide for himself; however, although there are a number of provisions in the Directive aimed at the same result, such an objective seems to have been only partly attained.[35] Moreover, while in the original proposal by the Commission article 6 also included a rule according to which States were required not to issue a return decision if its issuance would violate their human rights obligations, such as the principle of non-refoulement, the right to education and the right to family unity, this mandatory provision has not been included in the Directive. While its exclusion clearly does not allow States to violate their pre-existing human rights obligations, reference to human rights has been relegated to the Preamble and to article 5, which seems to suggest that the focus of the Directive has moved further away from the protection of fundamental rights.[36] Finally, with regard to unaccompanied children, article 10 provides for an additional requirement: a return decision may only be issued with the assistance of “appropriate bodies” and giving due consideration to the best interest of the child. Although this rule is aimed at ensuring additional guarantees to unaccompanied minors, it has been strongly criticized as it lacks any reference to the right of access to basic legal representation and to an appropriate procedure to establish the best interest of the child;[37] moreover, according to the UN Convention on the rights of the child, the best interest of the child should be a “primary concern” (and not merely taken into account) in all actions concerning children.[38]

With regard to the procedure to be followed, according to article 7 preference needs to be given to voluntary departure: indeed, the returns decision must, as a general rule, allow for a period for voluntary departure of between 7 and 30 days, during which the person may be subjected to specific obligations in order to ensure that he/she does not abscond.[39] However, member States may provide, in their national legislation, that such a period is only to be granted upon request by the person concerned: in this case, the State must inform third-country nationals of the possibility of submitting an application in order to be granted a period for voluntary departure.[40] While it is generally accepted that voluntary departure is preferable,[41] both because it is more humane and dignified and because it is less costly for member States, article 7 has been the object of a wide debate during the negotiations[42] and of much criticism thereafter, both with regard to the period that should be granted for voluntary departure[43] and to the exceptions that States are allowed to make. Indeed, while the general rule is clear, article 7 provides not only for reasons upon which States must extend, on a case-by-case basis,[44] such a period over the maximum (30 days), but also for reasons which allow States to grant a period of less than seven days or to refrain from granting any period for voluntary departure. Thus, if a State determines that there is a risk of absconding, or if the person had applied for a legal stay but the application was dismissed as manifestly unfounded or fraudulent, or if the person is considered to pose a risk to public policy, public security or national security, forced repatriation might be preferred. It is clear that the effective application of the rule on voluntary return will depend on the interpretation of these concepts, which are ambiguous and might be given a very broad application. In particular, the notion of “risk of absconding” has attracted much criticism: the Directive defines this risk making reference to “the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond,”[45] leaving broad space for discretion on the part of national legislation and implementing authorities. Indeed, while this notion requires the adoption of national legislation setting the objective criteria to be applied in order to establish whether an individual is at risk of absconding, the identification of such criteria is left to the discretion of member States, and thus might lead to an almost generalized recognition of the existence of a “risk of absconding,” bearing consequences even on the legality of detention.[46]

If the return decision has not been voluntarily complied with, or if no period for voluntary return has been granted,[47] States must, according to article 8, take all necessary measures to enforce the return decision, including by using coercive measures against persons resisting removal. The removal order may either take the form of a separate administrative or judicial decision - article 8(3) - or be included in the return decision, together with an entry ban if necessary - article 6(6). Article 8 thus mandates the carrying out of return decisions through the issuance of a removal order and its enforcement: States are obliged to forcibly remove those illegally staying third-country nationals who do not leave their territory voluntarily. The use of coercive measures in order to carry out the removal of a third-country national, while also foreseen by article 8, is subjected to strict requirements: coercive measures may only be used as a last resort, provided that they are proportionate and do not exceed reasonable force; they must be implemented in accordance with fundamental rights and with due respect for the dignity and physical integrity of the person concerned. While the Directive clearly aims at restricting the use of coercive measures to cases in which they are strictly necessary, it does not describe in detail the measures which may be adopted and the forms of restriction which are to be considered as legitimate;[48] moreover, while the European Parliament, in its report, had suggested prohibiting the use of coercive measures in order to carry out the removal of vulnerable persons,[49] this obligation has not been included in the final text of the Directive.[50] Article 8(6) also requires the establishment of an effective forced-return monitoring system: however, this rule is not further specified and the scope and content of such a monitoring system, as well as the subjects who should ensure its functioning, remain unclear. Reference to a monitoring system seems to derive from the CoE’s Twenty Guidelines on Forced Return, which also suggest the adoption of such a mechanism; indeed, the commentary to Guideline 20 includes a description of best practices in use in some States and an invitation to involve independent authorities, such as NGOs, in the monitoring system, as well as to videotape the most delicate phases of the return operation.[51] Finally, operations concerning the return of unaccompanied children are subjected to an additional requirement: according to article 10(2), the authorities carrying out his/her removal shall ensure that the child will be returned to a member of his/her family, a nominated guardian or adequate reception facilities in the State of return. While this provision is aimed at ensuring that unaccompanied children are not left without protection, it has been strongly criticized for being too vague and not entirely in accordance with general obligations regarding the rights of children; in particular, reference to “adequate reception facilities” seems to be too ambiguous, as it might allow their return to camps which only offer minimum standards of protection, including camps situated in a country other than the country of origin of the child.[52]

While removal of illegally staying third-country nationals is mandatory, it may be postponed in a number of cases (article 9). In particular, postponement of removal is mandatory when its enforcement would violate the principle of non-refoulement or if the person concerned has filed an appeal against the removal order which is granted suspensive effect; removal may also be postponed taking into account the specific circumstances of the individual case, such as the person’s physical state and mental capacity or technical reasons (including a lack of transport capacity or of identification of the person concerned). Whenever removal is postponed, the person concerned may be subject to specific obligations in order to prevent the risk of absconding. Article 9 of the Directive has also been subjected to strong criticism, in particular with regard to the decision not to include an amendment, which had been suggested by the European Parliament, providing for postponement of removal if its enforcement would lead to collective expulsions in violation of article 4 of Protocol 4 Additional to the ECHR;[53] thus, while Member States must of course respect their obligations under relevant international treaties, including Protocol 4,[54] explicit reference to this Protocol, and in particular to the rule prohibiting collective expulsions, has not been included. Another problem regarding article 9 is that it does not provide for any obligation of member States to issue a temporary permit or authorization to stay to persons whose removal has been postponed: indeed, while according to article 14 States must provide these persons with a written confirmation certifying that their removal has been postponed, such confirmation will not usually include a temporary right to stay and work. Thus, the persons concerned are left in a situation of semi-legality, in which they are usually not allowed to work nor have a right to be provided with sufficient means of subsistence.[55]

Finally, another very contentious rule of the Directive is the one concerning entry bans. One of the aims of the Directive and of the main reasons for its adoption was to introduce EU-wide entry bans, that is (in the language of Article 3(6) of the Directive), administrative or judicial decisions or acts prohibiting entry into and stay on the territory of the member States for a specified period, accompanying a return decision: recital 14 of the Preamble also makes reference to the need to give national returns measures an European dimension by establishing an EU-wide entry ban.[56] Thus, article 11 of the Directive provides for a number of cases in which issuance of an entry ban is mandatory (in particular, when no period for voluntary departure has been granted, or when the obligation to return has not been voluntarily complied with), while making the adoption of such bans optional in all other cases; States are only invited to consider withdrawing or suspending the entry ban when the person concerned can demonstrate to have left the territory of the State in full compliance with a return decision. Moreover, entry bans may be withdrawn or suspended in individual cases for humanitarian reasons or, in specific cases or categories of cases, for other reasons. Issuance of an entry ban is only prohibited with regard to victims of human trafficking who, having cooperated with national authorities, were granted a residence permit pursuant to Council Directive 2004/81/EC, provided that they do not represent a threat to public policy, public security or national security and except in cases when they did not comply with a return decision by voluntarily returning to their country of origin. Finally, if a person is the subject of an entry ban issued by a member State, other States must consult the former if considering issuing a residence permit or other authorization offering a right to stay on their territory to that person.[57] The length of the entry ban is to be determined taking into account all circumstances of the individual case: while in principle it shall not exceed 5 years, this time-limit may be exceeded if the persons represents a threat to public policy, public security or national security.[58] It is clear, however, that States are required to adopt national legislation foreseeing the issuance of entry bans which should normally last no longer than 5 years, save in exceptional circumstances, to be assessed on a case-by-case basis.[59]

Article 11 raises a number of concerns. Firstly, it allows States to issue entry bans even in cases when the person has voluntarily left their territory, in compliance with a return decision: a clear disincentive to comply with such a decision, as the consequences of compliance and non-compliance may turn out to be the same.[60] It is true that States are invited to consider withdrawing or suspending the entry ban if the person concerned complied fully with the return decision: this provision, however, leaves broad space to State’s discretion, as it is not mandatory. Indeed, while some Authors[61] argue that it obliges States to foresee a procedure by which the persons concerned may apply to obtain suspension or withdrawal of the entry ban by demonstrating that they left the country voluntarily, this conclusion seems to be too far-fetched: the language of article 11(3) only suggests the adoption of such procedures, without mandating them. Moreover, while article 11(5) establishes that the provisions shall apply without prejudice to the right to international protection, many NGOs have highlighted the risk that re-entry bans might affect an individual’s right to seek asylum, in particular in cases in which an application for asylum was rejected and the person was removed: if the circumstances change in the person’s country of origin, or in the individual’s profile, the third-country national should be able to enter the EU again in order to seek asylum.[62] In more general terms, the regime of EU-wide entry bans has been depicted as a form of “mutual recognition of negative asylum decisions”: indeed, while Member States are not requested to recognize decisions granting asylum to third-country nationals, as it is widely recognized that the procedures related to asylum vary widely across the EU, they are however obliged to recognize return and removal orders and entry bans, including those deriving from a negative evaluation of an application for asylum.[63] Moreover, both scholars and NGOs have underlined the risk that the enactment of a regime of entry bans lasting up to 5 years might actually be counterproductive: indeed, an entry ban will prevent the persons concerned from reentering Europe legally and thus might incite them to immigrate illegally, also increasing the risk that they might be trafficked or smuggled into Europe.[64]

Finally, with regard to the only case in which issuance of an entry ban is prohibited, it seems to have been formulated too narrowly: indeed, human trafficking victims cannot be equated to any other illegal migrant, as they have been coerced or fraudulently induced to enter the territory of the State. Moreover, those trafficking victims who cooperated with national authorities face a serious risk of retaliation if returned to their country of origin: thus, their forced removal should only be carried out after a thorough evaluation of their personal circumstances, and never be accompanied by an entry ban, which would prevent them from seeking refuge in the country in which they testified putting at risk their life and the safety of their families.[65]

Procedural safeguards

The third chapter of the Directive under examination is entitled “procedural safeguards” and contains a number of provisions aimed at ensuring the lawfulness of any act adopted under the Directive, setting minimum formal standards and detailing a list of remedies which are to be made available against such acts.

Firstly, according to article 12 return decisions, entry-ban decisions and decisions on removal must be issued in writing, giving reasons in fact and in law and providing information on available legal remedies. While these minimal guarantees are clearly aimed at ensuring that the person involved is informed of the decision and of the remedies available to challenge it, much criticism has been devoted to the issue of translation. Indeed, translation of the main elements of the decision is only to be provided upon request by the third-country national, it may be given in oral or in writing, and it must only be given in a language that the person understands, or “may reasonably be presumed to understand”.[66] While this provision might be aimed at ensuring that the person concerned may not block the procedure leading to his/her removal by requesting translation in a language whose use is not widespread by denying to understand any other language, there clearly is a risk that the person will only be provided with a translation in a language that he/she does not understand, or at least not fully understand.[67] Moreover, the information on the factual grounds of the decision may be limited, according to national law, for instance for reasons related to national security: in such cases, the person might not be in a position to challenge the act merely because he is not provided with sufficient information on its grounds.[68] The most problematic provision, however, is the one allowing States not to provide an individual translation to third-country nationals who have illegally entered their territory and have not subsequently obtained any right to stay there: in this case, the decisions shall be given by means of a standard form (to be set out by national legislation) and States are only required to provide general information sheets on the main elements of the form in at least five of the languages most frequently used or understood by illegal migrants entering their territory. This provision, which was not included in the original proposal by the Commission,[69] allows States to use standard forms and not to provide an individual translation thereof in all cases concerning persons who illegally entered their national territory: thus, a very broad category of individuals, although covered by the Directive and thus enjoying most of the rights enshrined therein,[70] is excluded from the scope of application of the right to an individual decision (be it a return decision, an entry ban, or a removal order) and to its translation in a language they may be presumed to understand. Commentators have underlined that the legality of the use of standard forms is very questionable: on the one hand, their use might lead to arbitrariness by the national authorities responsible for border control, who are required to interpret and issue them as well as to carry them out;[71] on the other hand, the European Court of Human Rights (ECtHR), in interpreting article 4 of Protocol 4 additional to the ECHR,[72] has deemed that this rule requires States to demonstrate that the circumstances of each of the persons concerned has been individually taken into account – a requirement which is impossible to satisfy whenever recourse is made to standard forms.[73]

With regard to remedies against decisions on return, article 13 foresees the right to an effective remedy to appeal against or seek review of such orders. According to the original proposal by the Commission, this rule, which would have been entitled “judicial remedies,” would have provided for a right to an effective judicial remedy before a court or tribunal; such remedy would either have had automatic suspensive effect or have included a right to apply for suspension.[74] During the negotiation process, however, while the Parliament defended the Commission’s position, the Council rejected it.[75] Thus, according to the final text of the Directive, the person concerned must be granted an effective remedy before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence: appeals against return and removal decisions and entry bans may therefore legitimately be decided by administrative bodies. Moreover, while the appeals authority must be granted the power to review the decision under appeal and to temporarily suspend its enforcement, automatic suspension is not even suggested by EU law: article 13(2) merely makes reference to cases in which a temporary suspension is applicable under national legislation, but it neither requires nor invites States to envisage automatic suspensive effect of appeals. This provision has given rise to a number of doubts and criticisms. Firstly, the right to an effective remedy is only foreseen with regard to decisions listed in article 12(1) - that is, return decisions, entry bans, and removal orders; however, the Directive also envisages the adoption of other decisions, such as a refusal to postpone removal according to article 9, or to extend the period for voluntary return according to article 7. Are such decisions not subject to any form of remedy or appeal? According to some scholars, a narrow interpretation of article 13 would clearly violate the fundamental right to an effective remedy:[76] thus, a broader interpretation is necessary so as to include the right to appeal against any decision issued in accordance with the Directive.[77] Moreover, as article 12(3) allows States not to provide a translation of the orders to immigrants who entered the State irregularly but to rely on general information sheets, which may not be available in a language that the person concerned understands, the right to an effective remedy is seriously undermined, as there is a risk that those concerned are not aware of the content of the order and of the existing remedies.[78] Finally, NGOs have highlighted that the right to an effective remedy against a return or removal decision may remain meaningless if it has no automatic suspensive effect: indeed, if the person concerned is returned to the country of origin, or to a transit State, before the procedure which will lead to review the legality of the order has come to an end, there is a high risk that a subsequent annulment of the removal decision will have no effect at all, as the migrant will already have been removed and thus will often not be in a position to come back to the territory of the EU.[79] It is true that, according to article 13(2), the body reviewing the decision must have the power to temporarily suspend its enforcement; however, the Directive does not clarify under which conditions such suspensive effect is to be granted, thus leaving broad discretion to national authorities and potentially allowing for legislation which renders suspensive effect exceedingly difficult to obtain.

With regard to the rights of the third-country nationals during the review procedure, they must be granted the possibility to obtain legal advice, representation and, when necessary, linguistic assistance. Moreover, according to article 13(4), which has been fully redrafted during to the negotiation process, Member States must ensure that the necessary legal assistance and/or representation is granted, on request, free of charge, in accordance with national legislation on legal aid; such free legal aid may be subjected to the conditions set out in Article 15(3) and (6) of Directive 2005/85/EC.[80] The provision on free legal aid has proven one of the most problematic to approve, as the Parliament did not agree to leave this issue to national legislation, while Member States opposed to the inclusion of a general right to free legal aid.[81] The final text of this rule thus represents a compromise between two opposite views; such compromise was only reached after the Commission included a final statement in which it committed itself to assist Member States in order to mitigate the financial burden resulting from the implementation of article 13(4) in a spirit of solidarity. Moreover, in its statement the Commission also underlined the possibility, existing under the European Return Fund, to co-finance national action promoting the application of article 13(4), also explicitly stating that measures taken in accordance with this provision may be co-financed up to 75% under the European Return Fund.[82] As a result of such generous concessions by the Commission, compromise was reached over the final text of article 13(4); however, while States are requested to provide free legal aid to those in need of it, such provision may be subjected to serious limitations, such as an evaluation of the financial need of the appellant and of the likelihood of the appeal to succeed. Moreover, while the deadline for transposing the Directive in national legislation expired on 24 December 2010, States have been allowed an additional year to bring into force legislation and administrative measures necessary to comply with article 13(4):[83] thus, third-country nationals expelled in 2011 are not entitled to free legal aid to appeal against the decisions concerning their return and removal.

With regard to safeguards pending return, article 14 establishes that, during the periods for voluntary departure, or for which removal has been postponed, States must take into account, as far as possible, some principles: in particular, maintenance of family unit; provision of essential treatment of illness and emergency health care; access of minors to the basic education system (subject however to the length of their stay); and attention to the needs of vulnerable persons. Moreover, States are required to provide third country nationals concerned with written confirmation of their status, clarifying that the period for voluntary departure has been extended or that the return decision will temporarily not be enforced. This provision has also been substantially redrafted in the course of the negotiation process: indeed, the original Commission’s proposal required States to grant third-country nationals treatment equivalent to asylum seekers under the so-called Reception Conditions Directive.[84] During negotiations, however, the duties and obligations of States in this respect were considerably watered down: the language of article 14 makes it clear that States are only required to “take into account” the principles listed therein, and only “as far as possible”. Thus, for instance, States are not requested to grant prospective returnees basic subsistence standards – a decision which led the Commission to underline that this could encourage third-country nationals to apply for asylum even in cases when such application is manifestly unfunded, as this would allow them to benefit from the rights granted under the Reception Conditions Directive.[85] NGOs have also criticized this provision, in particular with regard to the trend, which is claimed to already exist among Member States, of compelling asylum seekers whose applications have been rejected to leave by withdrawing all forms of support: according to some commentators, the same withdrawal of support, although at risk of violating articles 3 and 8 ECHR, might also be applied to perspective returnees, forcing them to leave.[86] Moreover, while issuance of a written confirmation of the persons’ status is clearly a measure aimed at ensuring that such persons are not left in limbo pending their expulsion, even a written act is of little use if it grants neither access to basic conditions of subsistence, nor access to the labour market: indeed, while third-country nationals whose removal has been postponed will be in a condition to prove their status to public authorities, they will have no legal way to provide for themselves and their families, and might thus be pushed into the black economy or resort to committing crimes in order to ensure their subsistence.[87]

Detention for the purpose of removal

Chapter IV of the Directive deals with issues related to detention. Indeed, while detention is to be limited and subject to the principle of proportionality with regard to the means used and objectives pursued, and its use is only justified to prepare the return or carry out the removal process (as stated in the Preamble, para. 16), it is clear that detention of third-country nationals will often be ordered, as already usually happened even before the entry into force of the Directive. Thus, while the latter aims at ensuring that detention is only used as a measure of last resort, that its length is limited, and that conditions of detention are humane and dignified, it also envisages recourse to detention in a high number of cases. In the original Commission’s proposal, detention was, in specific circumstances, mandatory; on this point, the present text is thus a clear improvement, as it merely allows States to keep in detention third-country nationals if a number of requirements are present, but never foresees mandatory detention.[88] According to article 15, States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return or removal of the person, and unless other sufficient but less coercive measures can be applied effectively in a specific case; detention is allowed, in particular, when there is a risk of absconding or when the person concerned avoids or hampers the removal process. Moreover, detention shall be maintained for as short as possible, and in any case only as long as removal arrangements are in progress and executed with due diligence. The first paragraph of article 15 thus clearly aims at ensuring that detention of irregular migrants is only used as a measure of last resort, whenever less coercive measures are, given the specific circumstances of the case, insufficient: the Directive, however, does not include an exhaustive list of circumstances which may form the basis for a decision on detention, as it merely lists two examples of such circumstances, leaving it to national legislation to define any other ground for the issuance of a detention order.[89] Moreover, both examples given are, in some way, worrisome: on the one hand, with regard to the “risk of absconding”, this may be interpreted as existing merely based on the person’s irregular status;[90] on the other hand, with regard to cases in which the person concerned hampers the removal process, this provision could be interpreted as allowing for detention of persons who refuse to cooperate in order to pressure them, for instance inducing them to no longer hide their identity or nationality.[91] It seems important to stress that this paragraph of the Directive is in line with Guideline 6 of the CoE’s Twenty Guidelines on Forced Return, which also provides that detention pending removal may only be ordered if it is necessary in the specific circumstances of the individual case, as less coercive measures appear to be insufficient; moreover, the second sentence of this paragraph is almost identical to Guideline 7 and reflects the ECtHR’s jurisprudence on article 5 ECHR, in particular with regard to the length of pre-return detention and the conditions for its legitimate extension.[92]

With regard to formal requirements, article 15 provides that detention may be ordered by an administrative or judicial authority; the order must be written and contain reasons in fact and in law. When detention has been ordered by an administrative authority, States must either provide for an automatic speedy judicial review of its lawfulness, or at least grant the person concerned a right to initiate proceedings leading to its speedy judicial review; if, at the end of such review, detention is deemed to be unlawful, the person must be immediately released. Detention must also be reviewed at reasonable intervals of time, either upon application or ex officio; if it is prolonged, review must be subject to the supervision of a judicial authority. If there no longer exists a reasonable prospect of removal, or if the conditions justifying detention are no longer fulfilled, the person must be immediately released. States must set a limited period of detention which may not exceed six months; this period may however be extended for a further twelve months, in accordance with national law, when, notwithstanding the State’s reasonable efforts, the removal operations are likely to last longer due to a lack of cooperation by the person concerned or to delays in obtaining documents from third countries.

The provision on detention has been the object of broad discussion during the negotiation process and of much criticism afterwards. Firstly, with regard to the maximum length of detention, in the original proposal of the Commission this was set to 6 months, not subject to any extension;[93] during the negotiation process, the Council suggested an extension of such maximum limit, while the Parliament proposed to reduce it to three months, which could however be extended to up to 18 months.[94] The final text is therefore a compromise and provides for very long pre-return detention periods; still, it must be considered as a clear improvement at least with regard to those Member States in which, at the time of the adoption of the Directive, no maximum length of pre-removal detention had been set.[95] However, the maximum period of detention of 6 months (and, in case of extension, of 18 months) has been strongly criticized as being too long. Firstly, it is claimed that existing detention practices in force in Member States at the time of the adoption of the Directive were, in most cases, less harsh than those enshrined in this instrument: thus, its adoption is only likely to lead very few States to improve their standards, while allowing all other States to lower them.[96] Moreover, critics of article 15 have underlined that the conditions for prolonging detention to 18 months – a period which UN experts have deemed to be “excessive”[97] – would allow for its extension in a great number of cases, given that countries of origin and transit are often very reluctant to issue the necessary documentation, regardless of their obligation to do so.[98] In this specific case, the possibility to extend detention merely based on delays on the part of a State has been strongly criticized as amounting to sanctioning an individual for the unwillingness or inability of his/her country of origin to provide documentation, and thus for a circumstance which is beyond his/her control.[99] In more general terms, the Directive has been criticized for allowing for very long detention of persons who have committed no criminal offence: many organizations have thus felt the need to underline that irregular migrants are not criminals, and that, as a general rule, they should not be subject to detention at all.[100] With regard to the procedure leading to detention, this has also been sharply criticized: indeed, the original Commission’s proposal was much more in line with the requirements of a fair trial, as it established that temporary custody orders had to be issued by judicial authorities; administrative authorities could only issue such orders in urgent cases, but the decisions needed to be confirmed by judicial authorities within 72 hours from the beginning of detention.[101] During the negotiation process, however, these procedural safeguards have been considerably watered down: thus, detention may be ordered by an administrative authority in any case; such orders are not subject to an automatic judicial review, nor is such review subject to any time limit, as article 15 merely provides that it must be “speedy”.[102] However, detention orders, which need to be written and include reasons in law and in fact,[103] are subject to review at reasonable intervals of time, either on application or ex officio: if it appears that the conditions for detention no longer exist, or that there is no longer any reasonable prospect of removal, the person concerned must be released immediately.[104]

The interpretation and scope of application of article 15 has already given rise to a pronouncement of the Court of Justice;[105] given the circumstances of the case, and its importance, the Court ruled in Grand Chamber and under the urgent procedure envisaged by article 104(b) of the Rules of Procedure of the Court.[106] The case arose in Bulgaria, a State whose national legislation did not set, before the entry into force and implementation of the Directive, the maximum length of pre-removal detention. Thus, in order to transpose the Directive, a new law was approved, which also included a provision on the maximum duration of pre-removal detention; however, the law did not include any transitional provision, nor did it provide for immediate release in cases in which there appears to be no reasonable prospect of removal. The Court was asked to rule on a number of issues, concerning in particular the retroactive application of article 15(5) and (6), the need to take into account (in determining whether detention has exceeded its maximum length) periods spent in detention pending examination of an application for asylum and of periods during which the removal procedure had been suspended, the notion of “reasonable prospect of removal”, and the possibility to extend detention over the 18-months period if the person concerned is aggressive and has no means of supporting himself. In its judgment, the Court, for most part following the Opinion of the Advocate General,[107] interpreted article 15 of the Directive based both on its letter and on its objectives. In particular, it stated, firstly, that the maximum length of detention must also include any period of detention completed in connection with a removal procedure commenced before the rules in the directive became applicable: the Directive therefore also applies to limit the maximum length of pre-removal detention commenced before its entry into force, and periods spent in detention before that moment must also be taken into account in calculating such maximum length.[108] With regard to the periods that Mr. Kadzoev had spent in detention while his application for asylum was being examined, the Court commenced by recalling that, according to EU law, asylum seekers may not, as a general rule, be detained, and that detention under the Returns Directive and detention of asylum seekers fall under different legal rules and are subject to different requirements. Thus, the Court, while stating that it is for national courts to determine whether Mr. Kadzoev’s detention as an asylum seeker complied with the conditions for such detention, also underlined that, if there had been no new decision on detention in the context of the procedures related to his application for asylum, his detention remained based on the rules concerning detention for removal, and thus would also have to be taken into account in calculating whether pre-removal detention exceeded the maximum limits set in national law.[109] Following a similar line of reasoning, the Court also held that periods spent in detention while execution of the decree of deportation had been suspended because of the commencement of a judicial review against such decree also need to be taken into account: indeed, while article 13 of the Directive provides for the right to an effective remedy against decisions related to return and envisages its suspensive effect, it does not provide for the exclusion of periods spent in detention while enforcement of the removal decision was suspended from the time to be taken into account to calculate the maximum length of pre-removal detention.[110] With regard to the notion of “reasonable prospect of removal”, the Court first of all underlined that, when the maximum duration of detention has been reached, the question whether there still is a reasonable prospect of removal does not arise, as the person concerned must be released immediately; moreover, it also ruled that a reasonable prospect of removal exists when there is a real prospect that the removal can be carried out successfully, having regard to the maximum detention periods set in the Directive.[111] Finally, with regard to the possibility not to release the person immediately upon expiry of the maximum periods of detention on the ground that he has no valid documents, is aggressive and has no means of supporting himself, the Court clearly stated that the Directive does not allow for an extension of detention periods over 18 months for any reason: thus, the possibility of detaining the person concerned for reasons of public order or public safety cannot be based on the Directive itself.[112] This authoritative interpretation of the Directive is clearly to be assessed very positively: indeed, the Court has clarified that the maximum period of detention set in the Directive can never be exceeded, and that once it expires – taking into account all the time spent in pre-removal detention, including before entry into force of the Directive – the person concerned must be released immediately, regardless of his individual circumstances. Moreover, the Court has also recalled that asylum seekers should not be held in detention: if their detention is ordered in accordance with national and EU legislation relating to asylum seekers, it is not to be considered as pre-removal detention for the purpose of the Returns Directive; if, however, no such specific order is issued, and the person merely continues to be detained in compliance with a detention order issued on the basis of the Directive under examination, his/her detention continues to be relevant with regard to the maximum length of detention as set in the Directive. Finally, the Judgment of the Court also points to the existence of a different, and more fundamental, legal problem: what is the status of a person who is released after expiry of the maximum time-limits for detention, or because there is no reasonable prospect of removing him/her?[113] As already mentioned above, persons whose return or removal has been ordered but not carried out, for whichever reason, are left in limbo: in particular, in cases such as that of Kadzoev the person can neither be expelled nor regularized. Thus, he will have to be released, but will also be left without documents; moreover, as national policies of regularization of illegal immigrants have not been subject to any harmonization effort on the part of the EU, it may well be (and in the specific case of Mr. Kadzoev, it is[114]) that national legislation does not allow for their regularization. Thus, while EU law mandates immediate release of such migrants, it does not regulate their status: they might therefore find themselves stuck in a legislative twilight, not subject to expulsion nor to regularization, and thus particularly vulnerable to exploitation or to the temptation to resort to crime in order to provide form themselves.

With regard to the conditions of detention, article 16 establishes that this must, as a general rule, take place in specialized detention facilities; if a State cannot provide such accommodation and has to resort to prison accommodation, third-country nationals detained must be kept separated from ordinary prisoners. Detainees must be allowed, on request and in due time, to contact their legal representatives, family members and competent consular authorities. Reference is also made to the situation of vulnerable persons, which must be given “particular attention”, and to the need to provide emergency health care and essential treatment of illnesses. Detainees must systematically be provided with information on the rules applying in the detention center, their rights and their obligations, including information on their right to contact legal representatives, family members and consular authorities. Article 16 also provides for a right of relevant and competent national, international and non-governmental organizations and bodies to visit detention facilities; such right may however be subject to previous authorization. With regard to unaccompanied children and families with minors, article 17 provides that their detention shall only be ordered as a measure of last resort and for the shortest time possible; families must be provided with separate accommodation in order to protect their privacy. Children must have the possibility to engage in leisure activities and, depending on the length of their stay, in education; in the context of their detention, primary consideration should be given to their best interest. With regard to unaccompanied children, they shall, “as far as possible”, be accommodated in institutions with personnel and facilities appropriate to their age.

The principle according to which third-country nationals should be detained in specialized facilities and kept separated from ordinary prisoners is well-established in most instruments related to pre-removal detention; indeed, it was already incorporated in the original proposal by the Commission,[115] and is also to be found in the CoE’s Twenty Guidelines on Forced Return[116] and in the 7^th Report by the CoE’s Committee for the Prevention of Torture.[117] The inclusion of such a principle in the Directive is clearly a positive result, as it renders this rule binding on all EU Member States; however, the wording of article 16 has been criticized as it also allows for detention in ordinary prisons, which, according to some NGOs, could contribute to the migrants’ stigmatization and exclusion from society while reinforcing the confusion of migration and security issues which can already be seen in the public opinion.[118] Moreover, the Directive also allows for detention of vulnerable persons (a category which includes, for instance, pregnant women, disabled persons and victims of torture), while it does not include any specific safeguard with regard to the conditions of their detention, as it merely requires States to pay “particular attention” to their situation; the same holds true for minors and families. Indeed, firstly, the restatement, in article 17, that detention of children is to be used only as a measure of last resort and for the shortest time possible does not add anything to the content of the Directive: detention is only to be applied when other less coercive measures are insufficient, and to be kept at a minimum, for every category of third-country national.[119] Thus, article 17 seems to merely serve to the purpose of clarifying that detention of children, either with their families or unaccompanied, is not, by itself, prohibited; a rule which has met with much criticism, as it allows for detention of children for administrative reasons.[120] In more general terms, it seems that the rules on the conditions of detention, which were originally designed to ensure that detainees are treated in a humane and dignified manner, with respect for their fundamental rights, have been considerably watered down in the final text of the Directive: indeed, for instance, while draft article 15(1) began by asserting that “Member States shall ensure that third-country nationals under temporary custody are treated in a humane and dignified manner, with respect for their fundamental rights and in compliance with international and national law”, this provision has been moved to the Preamble, para. 17, and thus has lost its binding character. However, detention facilities in Member States have been constantly criticized for being poorly equipped, often overcrowded, and lacking adequate hygiene standards as well as access to information and medical care:[121] thus, restating the necessity to ensure that detention takes place in a dignified and humane manner would have been more than a mere symbolic statement. The rule according to which detention facilities shall be open to visits by national and international bodies and NGOs is clearly aimed at ensuring some form of control and at increasing awareness over the conditions of detention in such facilities: however, as such visits may be subjected to prior authorization, they may be rendered ineffective,[122] while the powers of the visiting organizations and bodies are unclear.[123]

Finally, the Directive also includes a clause with regard to emergency situations, allowing States to derogate from some of its provisions “in situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden” on the capacity of their detention facilities or on their staff, only for as long as the exceptional situation persists and after informing the Commission. This provision, which is completely new as it was not included in the original proposal by the Commission, leaves very broad space for States’ discretion to assess whether the situation is exceptional and unforeseen: indeed, while States are required to inform the Commission, the latter does not have the power to contest the State’s evaluation of the existence (and persistence) of an emergency situation.[124] Moreover, this rule has been criticized as it allows to derogate from some of the fundamental provisions of the Directive: in particular, it allows for judicial review of administrative decisions on detention not to be decided “as speedily as possible”[125] and for derogations from the duty to keep third-country nationals separated from ordinary prisoners and to grant families detained separate accommodation.[126]