Select Committee on European Scrutiny Eighth Report


MUTUAL RECOGNITION OF EXPULSION DECISIONS CONCERNING THIRD COUNTRY NATIONALS


(a)
(21465)
9896/00

(b)
(22062)
13095/2/00


Draft Directive on mutual recognition of decisions
concerning expulsion of third country nationals.


Draft Council Directive on the mutual recognition of
decisions on the expulsion of third country nationals.


Legal base: Article 63(3) EC; consultation; unanimity
Deposited in Parliament: (b) 1 February 2001
Department: Home Office
Basis of consideration: (a) Minister's letter of 2 January 2001
(b) EM of 15 February 2001
Previous Committee Report: (a) HC 23-xxx (1999-2000), paragraph 4 (22 November 2000)
(b) None
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: (a) Cleared
(b) Not cleared; further information requested

Background

  4.1  Article 63(3)(b) EC requires the Council to adopt measures on illegal immigration and illegal residence, including repatriation of illegal residents, by 1 May 2004. One such measure is a draft Directive on the mutual recognition of decisions on the expulsion of third country nationals.

  4.2  We considered the draft Directive (document (a)), proposed by France, on 22 November 2000. We made a number of points on the draft, asked for clarifications to be given and maintained the scrutiny reserve. The Minister of State at the Home Office (Mrs Barbara Roche) has now replied, and has also deposited a revised draft Council Directive (document (b)), together with an Explanatory Memorandum.

The Minister's response

  4.3  In her letter of 2 January 2001, the Minister confirms that the Government has decided to opt in to this measure and addresses the three principal concerns we expressed. The first of these was to be informed of any consultation the Government had conducted with non-governmental organisations (NGOs) concerned with EU immigration and asylum issues and for a summary of their views. On this point, the Minister replies as follows:

      "Officials hold regular meetings with UNHCR and with NGOs, including the Immigration Law Practitioners' Association, Joint Council for the Welfare of Immigrants, Justice, Refugee Council, Refugee Legal Centre, and the Immigration Advisory Service, at which European issues are discussed. This instrument was raised at a recent meeting and was also discussed at a Seminar organised by JCWI on 29 November. NGO representatives have expressed concern that some aspects of the draft Directive might contravene the provisions of the European Convention on Human Rights. They have indicated that they would consider writing to the Commission on this proposal."

  4.4  Our second concern was that the provisions of Article 3 of the Directive appeared to require enforcement in this country of an administrative decision taken in another Member State where that decision is based simply on 'serious grounds' for belief that a person has committed serious criminal offences or where there is 'clear evidence of an intention to commit' such offences. We asked if the Minister was satisfied that the enforcement of an order based on these grounds would be consistent with the European Convention on Human Rights, and Article 6 in particular. The Minister comments on this point as follows:

    "The draft Directive makes it clear that an expulsion decision to be enforced under Article 3.1.a must have been taken based on a serious and present threat to public order or to national security and safety, considerably restricting the scope of the proposal. The revised proposal also now makes clear that enforcement of the decision by a Member State must be consistent with the provisions of the ECHR and other applicable international agreements (Article 3.2). We are satisfied that anyone subject to such enforcement action would have the protection of the ECHR and could rely on its provisions where appropriate."

  4.5  Our third concern was over the provisions of Article 4 which requires the enforcing State first to consider the situation of the person concerned 'under the relevant international instruments and under national rules applicable' before expelling the person. We wished to know if the national rules would still be effective to prevent enforcement, or whether such rules would be displaced by the Directive. In reply, the Minister refers to the ECHR, the UN Convention relating to the Status of Refugees, the UN Convention against Torture and the UN Convention on the Rights of the Child as being relevant international instruments in this context and comments as follows on Article 4 :

      "Although this measure is framed in terms of a Directive, following negotiations in the working group, the application of the proposal has been amended to make enforcement of another Member State's expulsion decision voluntary. The purpose of the Directive is stated as "to make possible the recognition of an expulsion decision issued by a competent authority in one Member State ......against a third country national present within the territory of another Member State...". It would therefore be for each Member State to decide whether the enforcement of another Member State's expulsion decision would conflict either with its own national legislation or an international instrument to which it is a signatory before proceeding. Even then, there would be no absolute requirement for any Member State to enforce such an expulsion decision."

Document (b)

  4.6  The Minister's letter of 2 January described the amendments made to the proposal and which are incorporated in the revised draft Council Directive. This has now been deposited with an Explanatory Memorandum of 15 February. The effect of the revised form of Article 3 is described as follows:

    "Each Member State is to decide whether the enforcement of another Member State's expulsion decision would conflict either with its own national legislation or with an international instrument to which it is a signatory, before proceeding. Even then, there would be no absolute requirement for any Member State to enforce such an expulsion decision."

  4.7  Article 3.2 now provides that both the expulsion and the enforcement measure must comply with the European Convention on Human Rights and with other applicable international instruments. The scope of the Directive also appears to have been changed, in that the definition of 'third country national' no longer refers to a person above the age of majority, and Article 1.3 causes the Directive not to apply 'to family members of citizens of the Union who have exercised their right of free movement'.

Conclusion

  4.8  We thank the Minister for her detailed and helpful letter, which in large measure meets our concerns. We note that enforcement of decisions is not to be made obligatory, and we also note the requirement in the revised draft that both the expulsion decision and the enforcement measure must comply with the European Convention on Human Rights, and with other applicable international instruments. In these respects, the revised draft appears to us to be a considerable improvement.

  4.9  We note the new provision excluding 'family members of citizens of the Union who have exercised their right of free movement' from the scope of the Directive, and ask the Minister to explain the purpose and effect of this exclusion.

  4.10  We also invite the Minister to inform us of the results of any consultation with relevant non-governmental organisations on the revised draft Directive.

  4.11  We are content to clear document (a), given that it has now been superseded, but we hold document (b) under scrutiny pending the Minister's reply.


 
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