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Common standards and procedures for returning illegal immigrants

This directive establishes common standards and procedures for Member States, whereby illegally staying third-country nationals may be removed from their territories. It lays down provisions for terminating illegal stays, detaining third-country nationals with the aim of removing them and procedural safeguards.

ACT

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.

SUMMARY

This directive provides Member States with common standards and procedures for returning third-country nationals staying illegally on their territories, with certain exceptions. Member States must however ensure that the treatment and level of protection of third-country nationals excluded from the scope of the directive corresponds at least to certain of its provisions on coercive measures, removal, health care and detention. In all cases, Member States must respect the principle of non-refoulement and take into consideration the best interest of children, family life and the health of the person concerned.

A return decision must be issued by a Member State to the third-country national staying illegally on its territory. If the third-country national has a valid residence permit or equivalent from another Member State, s/he must immediately return to that Member State. If another Member State takes back an illegally staying third-country national under a bilateral agreement, that Member State will be responsible for issuing the return decision. Due to compassionate, humanitarian or other reasons, a Member State may provide an illegally staying third-country national with an autonomous residence permit or an equivalent right to stay. Member States should not issue return decisions before the pending procedures for renewing such permits have come to an end.

The return decision must allow for a period of voluntary departure of between seven and 30 days for the illegally staying third-country national. Member States may require that this period is applied for by the person in question. In particular circumstances, the period for voluntary departure may be prolonged. Member States may also impose certain obligations on the third-country national for the duration of this period in order to prevent him/her from fleeing. When the illegally staying third-country national risks fleeing, has submitted a fraudulent application or poses a risk to public/national security, the Member State may grant a shorter period of voluntary departure or no period at all.

If no period is granted, or if the third-country national has not complied with the return decision within the period granted, the Member State must enforce his/her removal. Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove third-country nationals. The removal of a third-country national must be postponed if it breaches the principle of non-refoulement or if the return decision has been temporarily suspended. Member States may also postpone removals in particular circumstances.

An entry ban may be given together with a return decision. However, it must be provided when no period of voluntary departure is granted or when the illegally staying third-country national has not complied with the return decision. The duration of the entry ban must be set on a case-by-case basis, taking into consideration the particular circumstances of the person concerned. In principle, the duration may not be longer than five years, unless the third-country national poses a threat to public/national security. Member States may choose to withdraw or suspend an entry ban for particular reasons. In humanitarian cases, they may even decide to not issue such a ban.

Decisions on returns, entry bans and removals must be provided in writing and accompanied by information on available remedies. On request, the Member State must provide a translation of these to the third-country national, unless it issues decisions by means of a standard form.

Third-country nationals must be given the possibility to appeal against or seek review of return decisions, as well as to obtain legal assistance/representation free of charge. The decisions are to be reviewed by a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. The review body will have the power to temporarily suspend the enforcement of the decisions.

In specific cases, and when less coercive measures are not sufficient, Member States may detain a third-country national during the return procedure if s/he risks fleeing or avoids/obstructs the preparation of return or the removal process. Detentions are ordered in writing by administrative or judicial authorities and must be reviewed regularly. The detention period must be as short as possible and not more than six months. Only in particular circumstances, when the removal of a third-country national might exceed the time limit set, Member States may prolong detention by a maximum of 12 months. Specialised detention facilities are to be used for the purpose; however, if this is not feasible, Member States may use prison accommodation with separate quarters for the third-country nationals.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal

Directive 2008/115/EC

13.1.2009

24.12.2010
(24.12.2011 for Article 13(4))

OJ L 348 of 24.12.2008

Last updated: 29.04.2009
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