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Expulsion of Non-EU Member Country nationals
2) UNION MEASURE
Recommendation of 30 November 1992 regarding practices followed by Member States on expulsion (1).
Recommendation of 30 November 1992 concerning transit for the purposes of expulsion (2).
Recommendation of 30 November 1994 concerning the adoption of a standard travel document for the expulsion of Non-EU Member Country nationals (3).
Recommendation of 22 December 1995 on concerted action and cooperation in carrying out expulsion measures (4).
The Member States have adopted a number of recommendations aimed at harmonising existing practice on the expulsion of Non-EU Member Country nationals who are in the European Union illegally.
The first recommendation, dating from 1992, sets out the basic principles to be respected when applying expulsion measures, in accordance with the principles of the 1951 Geneva Convention and the 1967 New York Protocol. Expulsion measures may be carried out against persons who have entered a Member State's territory illegally or who have had an application for asylum finally rejected, unless they have been authorised to remain in the territory for humanitarian reasons.
The rights of people likely to be expelled must be respected (adequate notice, services of an interpreter if necessary, right of defence and prompt handling of the case). However, their freedom of movement may be restricted in certain circumstances and for a period strictly limited to what is necessary.
If the person is unable to obtain the necessary travel documents within a reasonable time, a specific expulsion document is used. A standard form is attached to the 1994 recommendation.
The conclusion of readmission agreements is encouraged, as is the incorporation in national criminal law of provisions concerning facilitators and employers of illegal labour.
Those whose task it is to accompany expelled persons must be properly trained and equipped. Finally, the exchange of personal or other data between Member States is allowed.
Transit for the purposes of expulsion
The second recommendation from 1992 aims to standardise practices regarding transit, that is the transit of a person who is not a national of a Member State through the territory or the transit zone of a port or airport of another Member State. In principle, expulsions of Non-EU Member Country nationals should not involve transit through the territory of another Member State. However, in the interests of efficiency, speed and economy, a Member State may ask another to authorise transit of such persons.
Before such a request is made, the State making the request must ensure that the expellee will be able to continue his journey and enter the country of destination in the normal way. It will then submit its request, which will include information on the person's identity, his journey, the authority responsible and whether an escort is required. The escort may be provided by the State carrying out the expulsion, the State of transit or the two countries together.
Overland transit may be refused if the person being expelled constitutes a threat to public order, national security or the international relations of the transit State. All transit may be refused if the information provided is not considered satisfactory.
If the expulsion measure cannot be carried out, the State of transit may return the person, without any formalities, to the territory of the requesting State at the latter's expense.
An addendum to this recommendation, adopted on 1 and 2 June 1993, introduces a simplified procedure for transit via an airport in another Member State. The requesting State notifies the country concerned, which may refuse within 24 hours of notification.
Concerted action and cooperation in carrying out expulsion measures
With a view to simplifying application of the above principles, another recommendation was adopted in 1995. To make it easier to obtain the documents required for expulsion, specific mechanisms may be implemented, particularly in the case of repeated difficulties with the consular authorities of the third State to which the persons are to be expelled. The principle of presumption of nationality can be used. Where the necessary travel documents cannot be provided the standard travel document can be used for the expulsion (see point 4).
On the question of transit, the principles of the 1992 recommendation are restated and provision is made for unescorted transit (see point 8). Where the person is to be expelled by air, the Member State responsible may request the cooperation of another Member State in finding a seat on a flight. With a view to proper coordination, each Member State must inform the others which authority in its territory is responsible for centralising and exchanging different types of information, including what seats are available on flights for expulsion purposes.
4) DEADLINE FOR THE IMPLEMENTATION OF THE LEGISLATION IN THE MEMBER STATES
(1) Not required.
(2) Not required
(3) 1 January 1995
(4) Not required
5) DATE OF ENTRY INTO FORCE (if different from the above)
(1) Not published in the Official Journal
(3) Official Journal C 274, 19.09.1996
(2) and (4) Official Journal C 5, 10.01.1996
(the 1992 recommendation annexed to the 1995 recommendation)
7) FOLLOW-UP WORK
On 23 June 1998, the Schengen Executive Committee adopted a decision on the measures to be taken with regard to States which pose problems in relation to the issue of documents enabling illegal immigrants to be expelled from the Schengen area (not published in the Official Journal).
In order to remedy the lack of cooperation between foreign consulates in the capitals of Schengen States when it comes to issuing laissez-passer, a number of solutions have been envisaged, in particular, that ambassadors of Schengen States should make contact with local authorities.
On 7 December 1999, Finland presented a proposal for a Council regulation determining obligations as between the Member States for the readmission of Non-EU Member Country nationals [Official Journal C 353, 07.12.1999].
This regulation will lay down Community rules relating to the readmission of nationals of non-member states who have illegally entered or stayed for a period in the Community. The point is to determine, when there are several possibilities, which Member State is responsible for the repatriation of that person.
On 20 July 2000 France presented an initiative with a view to adopting a Council Directive on mutual recognition of decisions on the expulsion of third country nationals [Official Journal C 243, 24.08.2000].
The Directive, which was approved by the Council on 28 May 2001, is designed to enable a Member State (the "enforcing Member State") to expel a third country national present within its territory when an expulsion decision has been taken against that individual by another Member State (the "issuing Member State"). To that end, it makes provision for the mutual recognition of expulsion decisions.
[Official Journal L 149, 02.06.2001]