Directive 2008/115 / EC (Return Directive)

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Directive 2008/115 / EC

Title: Directive 2008/115 / EC of the European Parliament and of the Council of December 16, 2008 on common standards and procedures in the Member States for returning illegally staying third-country nationals
Designation:
(not official) 		Return Policy
Scope: European Union excluding Great Britain , Ireland and Denmark ; also applicable in Iceland , Liechtenstein , Norway and Switzerland
Legal matter: Right of residence , right of asylum
Procedure overview: European Commission
European Parliament
IPEX Wiki
Date of issue: December 16, 2008
Release date: December 24, 2008
Come into effect: January 13, 2009
To be
implemented in national law by: 		December 24, 2010, partly December 24, 2011
Reference: OJ L 348, December 24, 2008, pp. 98-107
Full text Consolidated version (not official)
basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

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 - in short Return Directive - is a European Union directive that the return of illegally staying third-country nationals from the European Economic Area .

History of origin and scope

The directive was adopted on the proposal of the European Commission on September 1, 2005, on June 18, 2008 , following the opinion of the European Parliament and on December 9, 2008, following a decision by the Council . The proposed text, modified by Parliament, was adopted by 369 votes in favor, 197 against and 106 abstentions and accepted by the Council in the amended form. Several Latin American states protested, calling the directive a "directive of shame".

The Return Directive is addressed to the EU Member States (with the exception of Ireland and the United Kingdom) and needs to be implemented at national level. Denmark has the option to implement the directive, but is not obliged to do so and has not yet applied the directive. For Iceland, Norway, Switzerland and Liechtenstein, the directive represents a further development of the Schengen acquis . The directive is also binding for these countries.

According to Art. 2 Para. 3, the Return Directive does not apply to persons who enjoy the Union right to free movement of persons under Article 2 No. 5 of the Schengen Borders Code . This includes all Union citizens as well as the nationals of the states that are equal to them with regard to the freedom of movement under European law (currently Iceland, Norway, Liechtenstein and Switzerland), as well as the family members of these persons. The directive is therefore not applicable to citizens of the EEA and Switzerland; it affects only third-country nationals with illegal residence in the EU.

Objective of the directive

The Return Directive harmonises the provisions and procedures that apply to the return of third-country nationals without a valid residence permit . Whether this situation arose because the person concerned entered illegally, their application for asylum was rejected or the period of validity of their residence permit has expired is fundamentally irrelevant.

The directive lays down minimum legal guarantees for return; In doing so, it does not want to exclude legal provisions of the Member States which are more favorable for third-country nationals, provided that these are in accordance with the Directive (Art. 4 (3)).

Obligation to issue a return decision

Article 6 (1) obliges the Member States to take a return decision vis-à-vis illegally staying third-country nationals. This is the first time that the member states are required to act to consistently end illegal residence and no longer tolerate it. The sixth recital in the preamble to the directive states that the Member States must ensure that the illegal stay of third-country nationals is ended through a fair and transparent procedure . However, the directive does not see termination of residence as the only possible alternative course of action. In order to evade the required return decision, the Member States can decide at any time to issue a residence permit to persons staying illegally on their territory for humanitarian or other reasons (Article 6 (4)). This only prohibits member states from doing nothing ; however, they are faced with the choice of legalizing illegal residence instead of terminating their stay. This regulation offers hitherto unrecognized opportunities to open long-term prospects for tolerated persons and to end the unsatisfactory state of years of chain tolerances without a secure residence status.

If the person concerned is allowed to stay in another Member State, he must be obliged to go there (Art. 6 (2)).

The member states can combine the return decision together with a decision on the termination of the stay - as has been the case in Germany up to now (Art. 6 (5) and (6)).

When deciding to return, the well-being of the children and the family ties and the health of those affected must be taken into account. In addition, the principle of non-refoulement - the so-called non-refoulement requirement according to Art. 33 Geneva Refugee Convention - must be observed (Art. 5).

Deadline for voluntary departure

If a return decision is made, the person concerned must be given a period of between seven and thirty days to leave the country voluntarily (Art. 7, Paragraph 1).

The deadline is to be extended by an appropriate period of time, taking into account the special circumstances of the individual case (length of stay, presence of school-age children and the existence of other family and social ties) (Art. 7, Paragraph 2).

During the period for voluntary departure, in order to reduce the risk of going into hiding, the person concerned may be required to report to the authorities on a regular basis, to provide adequate financial security, to submit papers or to be obliged to stay at a certain location ( Art. 7 Paragraph 3).

If there is a risk of flight or if the application for a residence permit has been rejected as obviously unfounded or abusive, or if the person concerned poses a threat to public order , public security or national security , a period for voluntary departure may be waived or on less than seven days can be specified (Art. 7 Para. 4).

deportation

If the person concerned does not leave voluntarily, the return according to Art. 8 must be enforced as a last resort ( deportation ). The measures taken must be proportionate (Art. 8 Para. 4).

The deportation is to be suspended if it would violate the principle of non-refoulement or as long as an appeal has suspensive effect (Art. 9, Paragraph 1).

The Member States may postpone the deportation for an appropriate period of time, taking into account the special circumstances of the individual case, in particular if the physical or mental condition of the person concerned, technical reasons such as lack of transport capacities or failure of the deportation due to uncertainty about the identity dictate this (Article 9 Paragraph 2).

Protection of unaccompanied minors

If an unaccompanied minor is to return, he or she must be given the opportunity to be supported by suitable agencies in order to protect the best interests of the child (Art. 10, Paragraph 1).

Before an unaccompanied minor is deported, the authorities must ensure that the minor can be handed over to a member of his family, an official guardian or a suitable reception center in the country of return (Art. 10 Para. 2)

Re-entry ban

If no exit deadline is granted or if the person concerned does not leave within the set deadline, an entry ban must be imposed (Art. 11, Paragraph 1).

The duration of the re-entry ban is incorrectly stated even in the official publication of the European Parliament and in many subsequent publications . It is not five years , but is determined in accordance with the clear regulation of the directive in consideration of the respective circumstances of the individual case and does not in principle exceed five years. The directive does not set a minimum, but a maximum , meaning that an entry ban of less than five years must be examined. The ban may only exceed five years in exceptional cases if the third-country national poses a serious threat to public order, public security or national security (Art. 11 (2)).

Compared to the previous German law, the Return Directive brings about a considerable improvement in the position of those affected, because Section 11 (1) of the Residence Act in the version valid until November 25, 2011 did not provide for a maximum limit for the re-entry ban at all, which had prompted some German administrative courts to in individual cases, a maximum of 15 years can be regarded as permissible. Even the currently valid administrative regulation for the Residence Act is based on a possible 10-year entry ban. This practice will no longer be maintained, especially since the European Court of Justice in its judgment of September 19, 2013 emphasized the maximum limit of five years and decided that in old cases the re-entry of deported or expelled foreigners on the basis of the Return Directive does not contravene the entry ban under Section 11 Abs. 1 AufenthG is still a criminal offense.

In the opinion of the Federal Administrative Court , the new version of § 11 AufenthG i. V. with the Return Directive, the fundamental rights including the principle of proportionality and the European Convention on Human Rights, a right of the foreigner to limit the effects of the expulsion already in the expulsion decision. The authority does not have any discretion in determining the length of the deadline; the specified deadline is therefore fully subject to judicial review. As a result of an earlier decision by the Administrative Court of Baden-Württemberg , the court agreed that a time limit made later at the request of the person concerned turned the rule-exception ratio intended by the directive “on its head” and initially make the unlimited entry ban the legal rule.

The continuation of an optionally imposed entry ban must be checked if the person concerned can prove to have fully complied with the return decision. Under certain conditions, no entry ban is imposed on people who are considered to be victims of human trafficking. Otherwise, for humanitarian reasons, the imposition of an entry ban can be waived (Art. 11 Para. 3)

Procedural guarantees, legal protection, status until departure

Return decisions and - if necessary - decisions on an entry ban or deportation are made in writing and contain a factual and legal justification as well as information on possible legal remedies (Art. 12, Paragraph 1). At the request of the person concerned, a written or oral translation of the most important elements of a decision is usually to be made available (Art. 12 Paragraphs 2 and 3).

The person concerned has the right to have the return decision reviewed by a court or another independent body (Art. 13 Paragraphs 1 and 2). The person concerned can take advantage of legal advice, legal representation and - if necessary - language assistance (Art. 13 Para. 3). The procedure must be free of charge for him (Art. 13 Para. 4). The last point in particular was very controversial in the guideline-making process. In Germany, the procedure is currently only free of charge for those affected after legal aid has been approved. For this, the intended prosecution must offer sufficient prospects of success and the person concerned must be in need. While the second prerequisite is often the case with the poor, the first prerequisite sometimes leads to a refusal of legal aid, even with the lower forecast standards required by the constitution. The legislature will have to correct this. According to the announcement of the European Parliament, one way of financing legal costs is the return fund decided by the Commission, Council and EP in 2006. This fund is endowed with a total of 676 million euros for the period from 2008 to 2013.

Until a return must usually

  • maintaining the family unit with family members,
  • the provision of emergency medical care and the treatment of illnesses that are absolutely necessary,
  • ensuring access to the basic education system for minors depending on the length of their stay and
  • taking into account the specific needs of vulnerable people

be guaranteed (Art. 14 Para. 1). Those affected receive a certificate confirming the suspension of the deportation (Art. 14, Paragraph 2).

Detention pending deportation: requirements, legal protection, duration, accommodation

Detention pending deportation may only be imposed if there are no milder measures and then only in order to prepare for the return and / or carry out the deportation, especially if there is a risk of flight or the person concerned bypasses or hinders the preparation for the return or the deportation procedure. The duration of detention must be as short as possible and only extend to the duration of the ongoing deportation arrangements, as long as these are carried out with the necessary care (Art. 15, Paragraph 1).

The detention is ordered in writing by an administrative or judicial authority stating the factual and legal reasons. If the detention is ordered by an administrative authority, the measure must be examined ex officio or at the request of the person concerned. If it is not lawful, the person concerned must be released immediately (Art. 15, Paragraph 2).

The completed detention will be checked at appropriate time intervals. In the case of longer detention periods, the inspections must be supervised by a judicial authority (Art. 15 Para. 3).

If it turns out that for legal or other reasons there is no longer a sufficient prospect of deportation or that the general conditions for detention no longer exist, the person concerned must be released immediately (Art. 15 Para. 4).

Detention is maintained for as long as the conditions for this are met and as necessary to ensure the successful completion of the deportation, but generally not longer than six months (Art. 15 (5)).

Member States may extend the six-month period by a maximum of 12 months if the deportation measure will probably take longer despite reasonable efforts, because the person concerned does not cooperate or because the behavior of third countries leads to a delay in submitting the required documents (Art. 15 Paragraph 6).

Detention must take place in special detention facilities or - if this is not possible - in ordinary detention facilities, but in compliance with the principle of separation from ordinary prisoners (Art. 16, Paragraph 1). The person concerned is permitted to contact legal representatives, family members and the responsible consular authorities at the appropriate time (Art. 16 Paragraph 2). Particular attention is paid to the situation of vulnerable people. Emergency medical care and the absolutely necessary treatment of illnesses are granted (Art. 16 Para. 3). Relevant national and international organizations as well as non-governmental organizations are allowed to visit detention facilities (Art. 16 Para. 4). Detainees must be systematically provided with information explaining the rules in force in the facility and setting out their rights and obligations. This also applies to the right to contact national and international organizations and non-governmental organizations (Art. 16 Paragraph 5).

Deportation detention for minors and families

In the case of unaccompanied minors and families with minors, detention is only used in the most extreme cases and for the shortest possible reasonable period (Art. 17 Paragraph 1). Families detained until they are deported must be given separate accommodation that guarantees an appropriate level of privacy (Art. 17, Paragraph 2). Minors taken into custody must be given the opportunity to pursue leisure activities, including age-appropriate opportunities to play and relax, and, depending on the length of their stay, access to education (Art. 17 Para. 3). Unaccompanied minors must, as far as possible, be accommodated in facilities that are able to cater to their age-related needs in terms of personnel and material (Art. 17 Para. 4). Priority must be given to the best interests of the child in connection with deportation detention for minors (Art. 17, Paragraph 5).

Overload of the detention facilities

In the event of an unusually large number of victims to be accommodated and the associated unforeseen overloading of the capacities of the detention facilities or of the administrative or judicial staff, the Member State concerned may, for as long as this exceptional situation persists, extend the deadlines set for judicial review and take urgent measures in relation to adopt conditions of detention that deviate from the usual conditions of detention (Art. 18 (1)). The Commission must be informed of this (Art. 18 Paragraph 2). The derogation does not release the Member States from taking all appropriate measures, both general and specific, to comply with the obligations of the Directive (Art. 18 (3)).

Evaluation and implementation

Every three years the Commission reports to the European Parliament and the Council on the application of the Directive in the Member States (Art. 19). The member states have to implement the directive by December 24, 2010, with regard to the exemption from judicial fees according to Art. 13 (4) by December 24, 2011 (Art. 20).

In the German-speaking countries, the return directive has now been implemented as follows:

  • In Switzerland, the amended national legislation came into force in January 2011.
  • Austria has incorporated the provisions of the Return Directive through the Aliens Law Amendment Act 2011 into the Settlement and Residence Act , the Aliens Police Act 2005 and the Asylum Act 2005 . The law essentially came into force on July 1, 2011.
  • In Germany, on November 26th, 2011, the law for the implementation of directives on residence law of the European Union and for the adaptation of national legal provisions to the EU visa code of November 22nd, 2011 ( Federal Law Gazette I p. 2258 ) came into force, with which the Residence Act and the Asylum Procedure Act (today's name: Asylum Act ) have been changed.

According to the case law of the European Court of Justice , directives, insofar as they are sufficiently specific, are immediately applicable law in the states obliged to implement them at the end of the implementation period, so that conflicting national law was no longer applicable from this point in time. This realization prompted the German Federal Ministry of the Interior to issue preliminary instructions for use.

In 2014 the European Court of Justice ruled that illegally staying third-country nationals must be detained in special detention facilities for the purpose of deportation according to the wording of the Return Directive. A federal member state is obliged to ensure the possibility of corresponding placement in another federal state if there are no special detention facilities in a federal state.

criticism

The UK was not convinced, following a statement by State Secretary Phil Woolas, that Directive 2008/115 / EC was suitable to implement the strict return procedures necessary to counter irregular migration.

Non-governmental organizations and the United Nations Refugee Agency criticized the directive. The duration of detention is often longer than the length of detention that the participating states had previously provided for in their own regulations. The lack of sufficient guarantees to protect unaccompanied minors and insufficient judicial control of detention were also discussed.

literature

  • Petra Bendel : The European Union's Return Directive: a shame for Europe or the lesser evil? Society - Economy - Politics (GWP) 3/2008, pp. 315-320.
  • Petra Bendel : European Migration Policy: A Coherent Picture? Federal Agency for Civic Education
  • Hans-Peter Welte: The Return Directive 2008/115 / EC and family protection. InfAuslR 2012, 410
  • Holger Winkelmann: Commentary on the return policy at www.migrationsrecht.net, PDF doc. 401 KB.

Web links

Individual evidence

  1. ↑ Draft by the Commission of September 1, 2005 .
  2. ^ Opinion of the European Parliament of June 18, 2008 .
  3. ↑ European Parliament adopts Return Directive viewed on January 16, 2011.
  4. ↑ a b Petra Bendel : The Return Directive of the European Union: a shame for Europe or the lesser evil? (PDF; 170 kB) In: Society - Economy - Politics (GWP) Issue 3/2008, pp. 315-320. Retrieved August 24, 2010 .
  5. ↑ Status of the national implementation , accessed on September 3, 2017 .
  6. ↑ European Parliament adopts Return Directive viewed on January 16, 2011.
  7. ↑ Report by Deutschlandradios from June 18, 2008.
  8. ↑ Immigration Policy : Standardized Deportations - FAZ of June 18, 2008.
  9. ↑ That's a shame, actually! - First comments on the EU Return Directive by Holger Hoffmann from March 12, 2009, accessed on January 16, 2011.
  10. ^ VG Augsburg, judgment of May 2, 2000, Az. Au 1 K 98.1922.
  11. ↑ Cf. No. 11.1.4.6.1 of the General Administrative Regulation on the Residence Act of October 26, 2009, PDF doc. 1.99 MB.
  12. ^ Judgment of the Court of Justice (Fourth Chamber), 19 September 2013 , http://curia.europa.eu/juris
  13. ↑ BVerwG, judgment of July 10, 2012 - 1 C 19.11 - on the content of the decision cf. the press release no. 66/2012 of the Court on the same day.
  14. ↑ VGH Baden-Württemberg, judgment of December 7, 2011 , Az. 11 S 897/11, full text.
  15. ↑ Human rights-compliant implementation of the Return Directive , notification from Swiss Refugee Aid dated November 18, 2009, accessed on January 24, 2016.
  16. ↑ European Parliament adopts Return Directive , press release of June 18, 2008, accessed on January 24, 2016.
  17. ↑ Adoption of the return directive (Schengen further development) in Switzerland , official website of the Swiss State Secretariat for Migration SEM, accessed on January 24, 2016.
  18. ↑ Federal Law Gazette I No. 38/2011 : Aliens Law Amendment Act 2011, PDF doc. 525 KB.
  19. ↑ BMI letter of December 16, 2010  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. with recommendations for the provisional direct application of the directive due to delayed implementation, PDF doc. 59 KB, viewed at www. migrationsrecht.net on January 16, 2011.@1@ 2Template: Dead Link / www.migrationsrecht.net  
  20. ↑ Judgments in Joined Cases C-473/13 and C-514/13 and in Case C-474/13 ECJ PRESS RELEASE No. 105/14 of July 17, 2014.
  21. ↑ a b "RETURNING IRREGULAR IMMIGRANTS - HOW EFFECTIVE IS THE EU'S RESPONSE?" Institute for Public Policy Research from February 2013.
  22. ↑ Gerhard Weinhappel: "The EU's" Return Directive ". Europe's Shame or Progress?" Federal Ministry of the Interior 2009
  23. ↑ Petra Bendel : European Migration Policy: A Coherent Picture? Federal Agency for Civic Education, accessed on January 16, 2011 .
  24. ↑ Holger Winkelmann: Commentary on the Return Directive, PDF doc. 401 KB. www.migrationsrecht.net, accessed on January 16, 2011 .