The topic of immigration, or rather that of illegal immigration, has become a subject that is discussed in all households across all strata of Maltese society. This comes as no surprise since during the summer months we hear of migrants landing in one of our bays or being rescued by our armed forces almost on a daily basis. This issue has also become an integral part of the political debate in Malta.
However, since Malta is now a member of the European Union it is important to look at and discuss what the EU policies on this topic are. As one can appreciate, Malta can only act in the area of immigration within the framework of EU polices. In this context one has to look at the EU’s so-called Return Directive.
The Return Directive is part of the Commission’s common immigration and asylum policy outlined in the Hague Programme. The EU executive sees the directive as a tool to organise the return of illegal migrants by establishing common standards guaranteeing that they are returned with dignity and full respect for their human rights. It is also seen as a key means of establishing the EU’s credibility in the field of migration policy, which is still in its infancy.
The proposal for the Return Directive was first put forward in September 2005. After almost three years of negotiations, member States and institutions have finally reached an agreement on the text, which was adopted by the European Parliament on 18 June (369 votes in favour, 197 against and 106 abstentions). Overall, the Parliament managed to pass over 70 amendments via the co-decision procedure.
Yet the final compromise was deemed “flawed” by many MEPs from the Socialist Group, the Greens and the Left, all of whom refused to support it, saying it breached EU human rights standards.
The Return Directive seeks to standardise the procedures regulating the expulsion of illegal immigrants and close loopholes in national legislation. The text covers periods of custody and re-entry bans and also includes a number of legal safeguards. Under a key principle of the directive, EU member States cannot adopt harsher rules than the ones laid out in the directive. However, they will be able to retain more liberal rules or adopt new ones of a more permissive nature.
The directive establishes a common discipline for all member States to either expel every illegal resident migrant or grant him/her a definite legal status.
Once a decision is taken to deport an individual who cannot claim asylum or refugee status, a voluntary departure period (7-30 days) follows. If the deportee does not leave, national authorities will issue a removal order, which can include an entry ban of up to five years.
If the judicial authority issuing the removal order has serious grounds to believe that the deportee might be hiding, the person can be taken into custody. In nine EU member States, deportees can be detained indefinitely; in others there are less stringent rules. The Return Directive (art. 15) sets the maximum period of custody at six months, with a possible 12-month extension (6+12: maximum detention adds up to 18 months). An amendment introduced by the PES Group to reduce this to 3+3 was rejected.
Article 15 has arguably been the most controversial issue in the negotiations, with widespread opposition from human rights groups and the political Left sparking debates beyond Europe. The provision was perceived as a repressive form of administrative imprisonment and attracted strong criticism, particularly from Latin American countries where it was described as the “Directive of Shame”.
The Return Directive clarifies that families and children can only be held in custody as a last resort and for the shortest appropriate period of time. Unaccompanied minors will only be repatriated if they can be returned to their families or to “adequate reception facilities”.
During negotiations, EU countries pushed for their national authorities to be granted greater flexibility in defining “emergency situations”: if exceptionally large numbers of illegal immigrants places a burden on the country’s judicial system, it can allow more time for judicial review.
Illegal immigration has taken a more central stage during the French presidency. In fact, French President Nicolas Sarkozy has been calling for a European “Pact on Immigration and Asylum” ever since his election campaign in spring 2007. The proposed pact seeks to integrate and complement the efforts made by the EU institutions to shape a common European approach to both legal and illegal migration.
Following the drafting of the Pact, the European Commission published a communication entitled “A Common Immigration Policy for Europe: Principles, Actions and Tools” and a policy plan entitled “Asylum: an Integrated Approach to Protection across the EU”. The Pact tackles five main issues, (1) Legal migration: the pact states that each country should receive immigrants “in a spirit of solidarity” in accordance with the capacity of each country. (2) Illegal immigration: here the pact talks of selectively repatriating illegal immigrants and builds on the Returns Directive mentioned above. (3) Border controls: the document focuses on the role of Frontex for external security. It has been acknowledged by the head of Frontex that it has not yet been successful in halting the wave of illegal immigrants entering the southern tip of the Union. The Pact stresses the necessity to strengthen Frontex and allocate more resources to border controls. (4) Asylum policies: the Pact stresses the need for changes to asylum policies, which should lead to the creation of a common European asylum system. The single EU asylum policy will comprise common guarantees for asylum seekers and a shared definition of refugee status. (5) Foreign countries: the EU’s approach to migration policy should deal with the origin of third-country immigrants. The Pact suggests offering opportunities for legal migration tied to employment and education and also stresses that the fight against illegal migration cannot be separated from development issues of countries of origin.
In this article I have reviewed the EU policies on the issue of illegal immigration. This is an issue that affects quite a few southern European Union countries and particularly Malta due to its size and population density.
However, when discussing such an emotional topic it is first important to understand what the policies in this regard are, particularly now that under the French Presidency this topic has been put more forcefully on the Union’s agenda. Part 2 will discuss the issue of illegal immigration vis-à-vis Malta.
Ms Abela Baldacchino is a Member of the Committee of the Regions of the EU and a prospective candidate for EU Parliament Elections.
Claudette.baldacchino@gmail.com
