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Legalising barbarism

From Bolivia to Bangladesh, the new EU return directive - which allows for the imprisonment of 'illegal' migrants for up to 18 months prior to their expulsion - has met with global condemnation. But it forms only one strand of a broader 'Fortress Europe' approach to control all migrants, writes Ben Hayes

July 12, 2008
8 min read

‘Europe no longer the cradle of human rights’, rallied a typical press release. The EU has ‘legalised barbarism’, said Venezuelan president Hugo Chavez, while leaders in the Andean region have threatened to block trade talks with the EU over the issue.

At issue was the new EU return directive, which was voted on by the European Parliament in mid-June, paving the way for its formal adoption this autumn. The package of measures aims to harmonise key aspects of EU member states’ policy and practice regarding the expulsion of ‘illegal’ migrants. Among the common standards the directive will impose is a maximum detention period of up to 18 months for people being deported and a five-year EU re-entry ban for all those expelled. The agreement was greeted with widespread condemnation from the human rights community and beyond.

While such criticism is wholly justified, the return directive did not exactly fall out of the sky. On the contrary, the draft directive has been on the table since September 2005 and represents a crucial component of the EU’s common immigration and asylum policy, under development since 1999. In this sense, the directive is merely the latest tool – and there are many – geared toward the systematic registration, surveillance and control of all migrants and refugees in the European Union.

Legislating expulsion

The European Commission justified the original proposal of 2005 with the claim that ‘minimum standards’ on expulsion were necessary to improve practices in member states where people being deported were denied procedural rights or kept in poor conditions. However, in proposing an upper time limit of six months detention, the Commission threatened to lower standards in those countries that had shorter maximums – such as France (32 days), Spain (40 days) and Italy (60 days). There is no maximum in the UK and Ireland, which have opted out of the directive, along with Denmark leaving the UK free to continue to detain people pending deportation on security grounds indefinitely.

The Commission’s proposal also made expulsion orders mandatory for all illegal residents, albeit by prioritising ‘voluntary’ over forced return (‘voluntary’ being a fluid concept, often offered by states as the only alternative to detention and forced return). But at least it included some important guarantees for third-country nationals subject to expulsion proceedings that would, in certain cases, have prevented their deportation on human rights grounds.

A number of member states, however, thought these far too generous and by the time the EU working party on expulsion had finished with the text in 2006, these safeguards had been substantially diluted. Things got a lot worse when Germany took over the presidency of the EU in 2007 and substantially re-drafted the text, lowering the ‘minimum standards’ the directive was supposed to introduce even further.

In an attempt to reach agreement with the European Parliament, the subsequent Portuguese and Slovenian presidencies adopted a more conciliatory approach. While these improved the text, the EU Council (member-state governments) had ploughed ahead, proposing an administrative detention period of up to 18 months, the ability to detain and expel unaccompanied minors, the expulsion of people to transit countries (rather than their countries of origin) and a re-entry ban of five years. Many of the principles protecting human rights and procedural guarantees proposed by the Commission disappeared.

With growing and vociferous opposition from human rights organisations and the European Parliament’s civil liberties committee, the council now resorted to a familiar tactic: coercion. It told the parliament’s ‘rapporteur’ and the leaders of the various political groups that if the council’s ‘compromise’ text was not adopted there would either be no agreement whatsoever, or a strong likelihood that the incoming French presidency, which had already proposed a further draconian clampdown on ‘illegal’ immigration, would push for even lower standards. To its shame, the parliament not only accepted this premise, but adopted the measure at what is called ‘first reading’, following secret discussions with the council presidency.

The first-reading procedure was introduced for uncontroversial or highly technical legislative measures subject to ‘co-decision’ (between the parliament and the council), but two-thirds of all EU legislation is now adopted in this way, including all 13 measures on immigration and asylum adopted since 2004. Its effect is to completely remove the final stages of the EU’s legislative process, ruling out a second and third reading, limiting public scrutiny.

The return directive was passed on 18 June, with 367 MEPs in favour and 206 against. A subsequent ‘declaration’ by the member states, which has no legal force, stated that it would not provide grounds for those states with more favourable rules to lower their standards in accordance with the EU’s new ‘level playing field’. But within days, Italy had trebled the period that people being expelled could be detained from 60 to 180 days.

Europe’s deportation machine

While the directive has galvanised much opposition, there has been far less concern that EU policy as a whole now provides for the wholesale criminalisation of all irregular migrants (including the vast majority of refugees). Within this process, expulsion is merely the final sanction in a regime geared ever more toward detection and detention.

In the late 1990s all member states began fingerprinting asylum applicants and ‘illegal’ migrants; all the records are housed in the EU’s Eurodac database, which went online in 2000. Fingerprinting is now being extended to all visa applicants, whose data will be housed in a new EU visa information system (even where visas are refused), and all EU passport holders.

The ‘biometric’ identity documents and fingerprint scanners, now being rolled out across Europe, will be complemented by a new EU ‘entry-exit’ system designed to detect ‘illegals’ and visa overstayers, and the new ‘second generation’ Schengen information system, which will be used to enforce both deportation orders against those who have absconded and entry bans against those successfully deported.

‘Carrier sanctions’, fines for employers of ‘illegals’ and widespread raids on migrant communities complement these efforts on the ground. The result is that migrants lacking the legal authority to remain – despite the absence of any credible statistics, the EU claims there are some eight million ‘illegals’ present in its territory – are driven further and further ‘underground’, where they become susceptible to ever greater coercion and exploitation. The new French presidency of the EU was highly critical of the recent ‘amnesties’ granted by Spain and Italy to regularise people in this position, and is now seeking to outlaw any future concessions of the same magnitude.

The return directive itself is merely the latest measure in a long line of EU explusion policies adopted since the entry into force of the Amsterdam Treaty in 1999 – among the most controversial is a 2004 decision on joint explusion flights. ‘Collective expulsions’ are actually prohibited under a protocol to the European Convention on Human Rights and were theoretically banned again in the EU Charter of Fundamental Rights of 2000, but the EU simply ignored these rules. Commissioner Vittorino, who had responsibility for home affairs at the time these measures were passed, instead called upon member states to ‘educate their citizens that joint [expulsion] flights have nothing to do with collective expulsion’.

Expulsion airways

The first flight to be organised under the auspices of the EU took place in July 2005 when a charter flight collected 60 Afghans from the UK and France and deported them to Kabul. Two months later, Spain, France and Italy organised a joint charter flight to expel 125 Romanians from the EU (people who would 15 months later become EU citizens when Romania acceded to the Union), sowing the seeds for the current attack on Roma in Italy.

Frontex, the fledgling EU border police, also has a growing mandate to detect people residing unlawfully in the member states and enforce expulsions on their behalf, including collective expulsions. This is a mandate it takes very seriously, having recently requested its own fleet of aircraft for this purpose.

Finally, having long used money from the European refugee fund (which was designed to be used for the ‘integration’ of refugees) to finance their expulsion policies, the member states can now draw directly from a new ‘European return fund’, a 629 million euro programme that will run to 2013, of which 47 million euros is earmarked for Frontex operations.

All of this comes at a time when the EU professes to be ‘dependent’ on migrant labour to maintain current European standards of living, and amid proposals for a new ‘blue card’ scheme to streamline entry procedures for people needed to fulfil specific labour shortages. If trafficking in human beings is a crime, the EU is starting to look like the biggest trafficker of them all.

Ben Hayes is a researcher with Statewatch (www.statewatch.org)

and the Transnational Institute

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