For The Sake Of Harmonising Asylum And Refugee Policy In Europe Is The Returns Directive Fit For Purpose - Essay Example

?For the sake of harmonising asylum and refugee policy in Europe is the Returns Directive fit for purpose? Council Directive 2008/115 EC (the ReturnsDirective) provides that its main purpose is to establish a common criteria among Member States for setting “legal safeguards on decisions related to return” for ensuring “effective protection of the interests of the individuals concerned”.1 In other words the Returns Directive aims to harmonize asylum and refugee policy among the Member States. However, the Directive has been the subject of criticism, particularly from Non-government Organizations and human rights groups internationally.2 A major concern as expressed by the UNHCR is the Returns Directive mandate that Member States recognize return decisions made by other Member States. Such a mandate means that harmful decisions on asylum will have application across the EU.3 Therefore if the purpose of the Returns Directive is to ensure the harmonization of refugee and asylum policies relative to the protection of the interest of the concerned, it would appear that the Returns Directive fails in this regard. If decisions that are harmful to the individual refugee and asylum seekers are to receive common recognition, the Returns Directive is going to achieve an unintended and diametrically opposite purpose. In general, the Returns Directive sets out the rules for the procedure to be adopted relative to returns. This includes the return decisions,4 bans on entry,5 and provides that nationals from third countries who stay on an irregular basis ought to be permitted between a week and a month to organize their own departure prior to forced exile.6 In many ways these procedural guidelines do not deal with substantive issues and as such do not provide for a harmonious method for exacting asylum and refugee policies. To begin with there are no guidelines for regulating how forced departure should be practiced and whether or not refoulement should be denied in cases where return could result in serious consequences for the asylum seeker or refugee. The emphasis therefore appears to be security and border control in Europe.7 Secondly, the requirement that a refugee or asylum seeker be released without more after being held in detention for 6 months appears to have some practical difficulties.8 Mole and Meredith explains the difficulty with Article 15. Article 15 provides that once a detainee has been held for the maximum period, he/she must be released regardless of any justifications on the part of domestic authorities for the refugee or asylum seekers’ continued detention. This means that a refugee or asylum seeker could be released without valid documentation, or in circumstances where he or she is violent, has no methods by which to support himself/herself and certainly has no place to live.9 It is difficult to imagine how Article 15 purports to achieve harmonization of European policy on asylum and refugee policies that seek to protect the interest of those individuals. Article 15 effectively ensures that the asylum seeker and the refugee are placed into the general population once the detention reaches a 6 months at his/her own peril and in circumstances that are burdensome to the wider community. It would appear that the only method by which Article 15 can achieve the main purpose of the Returns Directive is to encourage Member States to forcibly return the asylum seeker or refugee to their country of origin as quickly as possible. As previously noted, this practice is also inconsistent with the Returns’ harmonization of policies intended to protect the interest of the individuals concerned. In fact the Returns Directive, thus far reflects the opinion of Schain’s, that the Returns Directive is more concerned with border control and security.10 Moreover, Article 15(5) which provides for a limited period of detention, contradicts Article 15(4) which provides: When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.11 Article 15(4) therefore suggests that detention can be extended until such time as the relevant authorities determines that the detainee’s successful removal is impossible. All indications are that this process may take longer than six months. However, when Article 15(5) is taken into account, it is clear that the authorities have only six months to arrange for the successful removal of a detainee. It therefore follows that authorities do not know with any degree of certainty, whether or not they actually have 6 months to arrange for a refugee’s successful removal or if they actually have a longer time pursuant to Article 15(4). The tension between Article 15(4) and (5) will obviously create a degree of administrative problems. Moreover, these administrative problems will only create problems for the asylum seekers who are already vulnerable. In this regard, asylum seekers who are being held in detention confront the possibility of being removed summarily. This risk is heightened by authorities’ mandate to either remove the asylum seeker within a 6 month period or face the possibility of eventually releasing the asylum seeker at his or her own peril. Article 15 of the Returns Directive was examined by the ECJ case Kadsoev. In this case the court ruled that Article 15(4) would only apply to situations where there is “a real prospect of removal” being “carried out successfully”.12 The problem here is that the authorities in different Member States may use a different criterion for determining whether or not a real prospect for approval no longer exists. Therefore there is a higher degree of disparaging asylum and refugee policies throughout Europe. Moreover, if a real prospect for successful removal exists and arrangements have not been made within six months, the refugee or asylum seeker is required to be released at his own peril. It is difficult to imagine how this kind of a policy will function to harmonize standards and policies in the interest of the individuals concerned. The fact is, an asylum seeker or refugee who can be successfully removed will be released prior to those arrangements being made and could be lost to the authorities. Consequently, there is no means by which this individual can be monitored by the authorities. Nor can the judiciary keep track of the individual released at his or her own peril. Therefore, the individual is not only released to his/her own peril, but to the peril of the authorities and the community at large. The fact is, releasing an asylum seeker in these kinds of circumstances appears to have little or no regard for the primary purpose of the Returns Directive: to permit detention for public health, safety and national security purposes.13 Complicating matters, the ECJ ruled in the Kadsoev case that Article 15: Must be interpreted as meaning that the maximum duration of detention laid down in those provisions must include a period of detention completed in connection with a removal procedure commenced before the rules in that directive become applicable.14 It would therefore appear that the maximum period of time is much shorter than the requisite six months. Assuming that authorities are busy with removal procedures that fail, time will be computed during that time so that no other efforts for successful removal are possible once six months expire. Regardless of whether or not the Returns Directive achieves or is fit for its stated purpose of harmonizing European policies on asylum-seekers and refugees, there are limits to which it can be effective. The ECJ acknowledged in Amuur v France that state sovereignty dictates that states have an inalienable right to control who may enter its borders and this includes asylum and immigration policies.15 EU states are for the most part bound by international conventions which essentially provide for regard to human rights in the treatment of refugees and asylum seekers. This calls into question the utility of the Returns Directive. Asylum seekers and refugees are required to be treated differently from immigrants. The court emphasized that there is difference between asylum seekers/refugees and immigrants.16 Moreover, the treatment accorded asylum seekers are equally applicable to those who are seeking asylum or refuge to escape persecution and those seeking to escape legitimate prosecution.17 This raises the question of whether or not harmonization of European policy on asylum seekers and refugees is necessary since Member States are already bound by international standards and policies. It therefore follows that suspicions and concerns that the Returns Directive is more about border control and security are justified. The Returns Directive purports to have a specific purpose, one of harmonizing policies relative asylum seekers and refugees relative to their interests. However, the manner in which it sets out to achieve this purpose appears to be counterproductive. Essentially, it appears to be setting policies and restrictions that can only ensure that asylum seekers and refugees are subject to refoulement as quickly as possible. Article 15 can thus be regarded as giving the Member States six months within which to remove the asylum seeker or refugee from their jurisdiction. There is no other way to interpret the Returns Directive. The fact is, if the refugee or asylum seeker is not removed promptly, the Member State will be forced to release the undocumented and perhaps criminal refugee/asylum seeker with no means of support into the wider community. Bibliography Textbooks Mole, N. and Meredith, C. Asylum and the European Convention on Human Rights. (Council of Europe 2011). Articles/Journals Acosta, ‘The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly? (The Adoption of Directive 2008/15: the Returns Directive)’, (2009) European Journal of Migration and Law II, 19-39. European Council on Refugees and Exiles, ‘ECRE Information Note on the 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,’ (2009) C07/23009/Ext/MDM 1-24. FRA, ‘Detention of Third-Party Nationals in Return Procedures’. (Sept. 2010) Thematic Report of European Union Agency for Fundamental Rights, 1-99. Table of Cases Amuur v France Application no. 19776/92, judgment of 25 June 1996. Saadi v the United Kingdom, application no. 13229/03 Judgment of 29 January 2008. Said Shamilovich Kadzoev v Direktsia ‘Migratsia’ pri Ministerstvo na Vatreshnite Raboti, Case C-357/09 30 November 2009. S.D. v Greece, application No. 53541/07 decision 11 June 2009. Table of Statutes Council Directive 2008/115 EC. Read More