EU: An Area of Expulsion, Carrier Sanctions and Criminalisation

Taken together, the four French Presidency proposals would prevent asylum seekers from gaining either access to the Union by legitimate means or by any other method, and criminalise all organisations and nonrelatives who assist them, or who assist undocumented migrants. If they do gain entry and then move within the EU, they can be expelled without adequate consideration of human rights or data protection rules. These proposals are even worse than critics of "Fortress Europe" could have expected.
There are three separate proposals for EU legislation, which were subsequently split into four.

Return to the country of persecution

First of all, the Presidency has proposed a Directive harmonising national law on carrier sanctions. This would apply to all air, sea or coach carriers, although Member States will likely be anxious to extend it to lorry drivers also. The Directive would require the carriers to immediately "take charge" of any third-country nationals refused entry for lack of visas or other travel documents when crossing the external border of a Member State, and to return the third-country nationals either to the country which issued the travel document they used to travel, to their state of origin, or to "any other state" which guarantees to admit them. The same applies to any carrier transporting third-country nationals in transit, if those persons are refused entry by the state of destination or refused onward travel by the carrier due to take them there. If carriers are unable to return the third-country nationals, they must pay for the onward transport, presumably to "any other state" willing to admit them. If the carriers cannot transport the third-country nationals immediately, they must "take charge of them".
These obligations make no exceptions for persons claiming asylum. So if a Member State or even a non-Member State which a third-country national is travelling to refuses entry to asylum-seeking third-country nationals because of their lack of visas or travel documents without properly considering their asylum claim, the carrier has to send the asylum-seekers back to the country which is persecuting them. In any event, carriers will likely prove unwilling, as they are already, to take anyone on board who lacks full documentation, as many asylum seekers do. So those asylum seekers will be required to stay in the country of persecution. Moreover, this Directive does not make clear what powers the carriers should have over the persons in limbo, whom they must "take charge" of; the Directive seems to propose some type of authorised private detention system outside the national territory. As a whole, this proposal represents the further privatisation of national immigration policy, because all those asylum-seekers denied a ticket, sent back or held in private detention will have difficulty challenging acts of private carriers.
The Directive also requires Member States to impose fines of at least 2000 euro per person on carriers bringing in persons who lack the travel documents or visas for entry. In this case, Member States cannot impose the fines if the third-country national "is admitted for asylum purposes", but in some Member States asylum applications are considered at the border and refused by border guards with inadequate training in asylum law. The fines and the obligations to transport and detain third country nationals in the Directive are applied regardless of whether the carrier brought third-country nationals to the borders deliberately.
The carriers sanctions Directive will force even more asylum-seekers to have recourse to illegal means if they want to enter the Community. To stop them doing that, the French Presidency has proposed a Directive defining "the facilitation of unauthorised entry, movement and residence" and a connected third pillar Framework Decision "strengthening the penal framework" against such facilitation. According to the Directive, Member States must make it an offence to "deliberately facilitate, by aiding directly or indirectly, the unauthorised entry, movement or residence in their territory" of third-country nationals. They must also prohibit attempts to commit and "participation in" such crimes (as an accomplice or instigator).

"Facilitators" sent to jail

According to the Framework Decision, all such "facilitation" is a criminal offence, and "facilitators" must face a jail sentence that could lead to extradition (so at least six months long), and could also face confiscation of their transport, prohibition on practising their job and deportation (if not an EU national). There should be extra penalties if the intention is to traffick in persons or exploit children, to allow illegal employment or if the "criminal" belongs to a "criminal organisation" as defined so broadly in an EU Joint Action of 1997 to apply to many NGOs objecting to EU policies. Member States also have to impose penalties on companies and non-profit organisations involved in such activity.
Member States may exempt family members from such prohibitions, but there is no possibility of exempting anyone else, whether they assist asylum-seekers or other migrants on humanitarian grounds. Therefore the effect of these two proposals is that anyone deliberately helping an asylum-seeker to enter or stay in the EU, except possibly a family member, is a serious criminal. Any organisations which help asylum-seekers or other undocumented migrants could be shut down, with their funds and property confiscated, and their staff jailed, expelled and banned from working in that field.

Expulsion orders

If anyone does manage to enter the Union despite these rules, the Presidency has proposed a final measure to make sure that they are removed as quickly as possible: a Directive on mutual recognition of expulsion orders. This requires Member States to enforce any expulsion order against third-country nationals made by another Member State, based on either a sentence of over one year in length, the existence of "serious grounds for believing" that they have committed serious criminal offences, or "solid evidence" of their "intention to commit such offences" within the EU. The initial decision to expel must be consistent with the European Convention on Human Rights (ECHR). Member States must also enforce another Member State"s decisions based on "failure to comply with" national immigration law; here there is no requirement that the initial decision had to be consistent with human rights law.
The Directive pretends to allow for expellees" rights, but on close inspection the protection is quite inadequate. First of all, it will, in practice, be impossible in most cases for migrants to challenge the expulsion order. The draft directive says that migrants must be given a "remedy" in the Member State enforcing the expulsion order, but this does not have to mean suspension of the expulsion order; and in immigration cases, if a remedy does not prevent expulsion, it is virtually useless.
Even if migrants are allowed to stay while challenging the expulsion order, they may not be able to obtain the information used to support the initial expulsion order. The draft Directive states that the general EU data protection directive applies, but in fact these rules do not apply to data related to criminal investigations, and also have huge "public security" exceptions. So it seems unlikely that migrants can ever question the supposedly "solid evidence" that they are planning serious crimes. In any event, the data protection directive does not provide rules on access to data from authorities in another Member State, so it will prove very difficult for migrants to challenge the information being used to expel them - even if they are able to insist on disclosure of such information.

Huge reduction in standards

The drafters of the Directive have appear to have either contempt for, or ignorance of, basic human rights law. First, the prospect of expelling people who breach national immigration law without ensuring that such decisions conform to the ECHR is a blatant breach of that Convention, which provides for no exception to the rule that no person facing a real risk of torture or inhuman or degrading treatment can be expelled. Moreover ECHR rules on protection of family life can apply to illegal migrants as well. Furthermore, the main text of the Directive makes no mention of the Geneva Convention on the status of Refugees, which only allows expulsion of refugees if they have committed serious criminal offences or are a serious security threat. There is no reference anywhere to the UN Convention Against Torture, ratified by nearly all Member States, or to the Sixth Protocol to the ECHR, which contains rights protecting against expulsion, and has been ratified by over half of them. The prospect of expelling people simply because they have been sentenced to as little as one year in jail is a huge reduction in the standard applied by most Member States to long-term migrants, and could encourage Member States with higher standards to lower them.
The reasoning behind the draft Directive is apparently to ensure that third-country nationals are expelled from the EU as soon as possible, without giving them a proper chance to challenge an expulsion order that they would have if they were first sent back to the Member State which made the expulsion order (which is the situation at present).
Postscript: The measures are on the provisional agenda for adoption at the Justice and Home Affairs Council on 30 November-1 December. However, it is thought that some may not be agreed until next year.


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