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French Presidency's attack on "illegal" entry and residence, carriers sanctions and expulsion

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26 July 2000

The French Presidency's programme includes the following:

1. Directive introducing sanctions for carriers conveying, within the territory of the Member States of the Community, foreign nationals without the documents required for admission to the territory of those Member States (scheduled for adoption at the Justice and Home Affairs Council, 30 November-1 December 2000)
2. Framework decision on combating the facilitation of illegal entry and residence (scheduled for adoption at the Justice and Home Affairs Council, 30 November-1 December 2000)
3. Council Directive on mutual recognition of decisions concerning expulsion of third-country nationals (not currently listed on the provisional agendas)
4. Action plan to improve the control of immigration (as this concerns practice, rather than policymaking, it is not intended to place this on the agenda of the JHA Council)

The French Presidency programme contains four controversial proposals affecting controls over internal and external policies to combat "illegal" immigration.

The Directive introducing sanctions for carrier will cover entry by air, sea and land and will bring in minimum fines of 2,000 per person and the possible liability to return the person(s) to the non-EU state from which they came or to pay the cost of such return.

The Framework decision on "illegal entry and residence" will make it a criminal offence to directly or indirectly assist entry, movement or residence.

Council Directive on mutual recognition of decisions concerning expulsion of third-country nationals

This proposed Directive stems from Article 63.3.b. of the Amsterdam Treaty which states that within five years measures should be taken to combat "illegal immigration and illegal residence" - and it may be the first of several such measures.

The draft proposal says that:

"That objective means that, given a policy designed to ensure fair treatment of lawfully present third-country nationals, European Union territory cannot become a sanctuary for those against whom an expulsion order has been issued by a Member State."

It is intended that a person(s) issued with an expulsion order from one EU member state should face an enforcement order in another member state. Article 2 says that the third-country nationals effected shall be "above the age of majority".

The new, and far-reaching, part of the proposal is in Article 3. While the Amsterdam Treaty has laid down a general objective it is the French Presidency's views which defined how this is to be enacted. It says:

"A third-country national as referred to in Article 1 shall be:

(a) in the case of an expulsion order based on a threat to public policy or public security or to national security:

- one who has been sentenced by the issuing State to a non-suspended penalty involving deprivation of liberty of at least one year;

- one in respect of whom there are serious grounds for believing that he has committed serious criminal offences or in respect of whom there is clear evidence of an intention to commit such offences within the territory of a Member State.

Possession of a residence permit shall not prevent the carrying out of an enforcement order issued under this subparagraph. That order must be:

- based on a serious present threat;

- consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;

(b) one who has had imposed on him an expulsion order based on failure to comply with national regulations on the entry or residence of aliens.

The draft measure does not explain why people who face just one year's imprisonment (as very low standard) should be expelled nor does explain why someone who is believed to have committed or against whom there is "clear evidence" should not face charges and trial if the grounds for suspicion have any validity. It appears that the allegations and suspicions, which may or may not be well-founded, of a host of EU agents and officials are to be the basis for removing a person from the EU.

For the full-text see: Draft Council Directive

Action plan to improve the control of immigration

Under this proposal:

"France wishes to propose to its partners a European Union Action Plan, aimed at strengthening the management of external border controls by reinforcing the bases of European solidarity in this domain. The aim is not to adopt a formal text but to identify a number of areas in which operational cooperation can be strengthened among the Fifteen (or among a smaller group of volunteer States).

This project is two-fold, aiming to improve the information exchange, early warning and response system and to organise a network of officers responsible for immigration matters in the countries of origin." (emphasis added)

This Action Plan is not intended for adoption by the Justice and Home Affairs Council but rather to refine the existing practices of Member States. It is divided into two sections, the first being Information exchange, early warning and response system: among the new practices proposed are:

1. Standardising the response of EU states to "waves" of immigration by introducing a "standard format report" which will establish the "trend" as either "stability, increase or decrease".
2. To revamp the "network of contact points" in each member states and the "early warning system for the transmission of information on illegal immigration and facilitator networks" are "little or unsatisfactory use" is being made of them at the moment. The objective being that when a member state gets "information about a threat at its borders or a weak link in its control system" then "its partners" must be informed immediately.
3. The decision-making response to the "threat" of "illegal immigration" will be coordinated by the EU Presidency who will be able to establish "a task force of heads of national police or civil service operational departments". Any response to the perceived "threat" could either be taken by all 15 EU states or simply by some member states deciding to "act jointly in a spirit of solidarity".
4. At the operational level "solidarity" will work "on a voluntary basis" by "mobilising" a "nucleus of Member States' expertise and equipment" to "support actions at the external borders". The initiative for this "fire-brigade policing" approach will be "on the initiative of the Presidency of the European Union and with the agreement of the State directly concerned." The report says that the Schengen acquis can help by affording the following powers:

"- drafting of a situation report, to be updated as frequently as possible, in the framework of the task force of the chiefs of operational departments;

- contacts at both diplomatic and technical level with the countries of origin or transit, establishment of close cooperation with the competent departments of those States;

- implementation of in-depth checks at authorised border crossing points at external borders, with priority being given to those particularly used by immigrants;

- fullest possible surveillance of land and sea borders at authorised crossing points at the external borders, with priority being given to frontier zones affected by immigration;

- fullest possible surveillance, through the deployment of mobile units, of land and sea borders in the vicinity of authorised crossing points, within the country, and especially on transport routes that could be used for illegal immigration;

- checking on non-public areas in ports providing international links;

- undertaking by States to fingerprint all aliens who have entered their territory illegally and whose identity cannot be established beyond doubt; preservation of fingerprints in accordance with the data protection law;

- stepping up the immediate and systematic return of third-country nationals who have entered illegally (in accordance with the rules of national and international law);

- strengthening exchanges of information between Member States' designated central contact points about the situation as it develops, the measures taken and persons apprehended, focusing particularly on organisations involved in smuggling persons and the routes used, in close cooperation with EUROPOL."

The second part of the Action Plan concerns: Establishment of a network of liaison officers in countries which are the sources of immigration. This is intended to systematise a system of liaison officials from member states based in third countries (countries of origin and transit), which are at present uncoordinated, and if necessary to allow a liaison official from one EU member state to act on behalf of all - creating "a European network of liaison officers". Their basic roles would be: a) "controls on embarkation" and b) "cooperation with the local authorities in all areas relating to the management of migratory flows".

See for the text of the Action Plan: Control of immigration

French Presidency, 1995

During the last French Presidency of the EU, in 1995, similar proposals for combating "illegal" residents was put forward but failed to get the backing of the majority of Member States. Statewatch coverage of the 1995 Presidency:

EU: Policing immigration (Statewatch bulletin, vol 5 no 2, March-April 1995)
EU: "Combatting illegal immigration" (Statewatch bulletin, vol 5 no 4, July-August 1995)