Parliamentary questions

14 February 2011 E-001114/2011

Question for written answer to the Commission Rule 117 Cornelis de Jong (GUE/NGL) , (S&D) , Sophia in 't Veld (ALDE) , Judith Sargentini (Verts/ALE) and (ECR)

Subject: Making illegal residence a criminal offence (2) Answer(s)

On 24 December 2010 the deadline for transposition of the directive on returning illegally-staying third-country nationals expired. In the , the directive has not yet been fully transposed. The Second Policy Document on Amendment of the Aliens Act of 6 December 2010 to implement the directive indicates that the Netherlands intends to link the imposition of a European ban on entry (which makes it impossible to reside lawfully) with the institution of a criminal offence of illegal residence.

1. The directive on returning illegally-staying third-country nationals does not contain any provisions concerning its enforcement. Does the Commission consider that making illegal residence a criminal offence is in line with the aim and substance of the directive on returning illegally-staying third-country nationals? Does the Commission consider this necessary in order to transpose the directive? Does the Commission agree with us that there are more humane and effective ways of terminating illegal residence status and preventing residence from becoming illegal?

2. The indirect consequences of making illegal residence a criminal offence could include a serious impact on organisations and individuals providing assistance (in whatever way) to people who are illegally resident in the Netherlands. What is the Commission’s reaction to the possibility that making illegal residence a criminal offence could result in churches and individuals that provide assistance on humanitarian grounds to people illegally resident in the Netherlands, or medical personnel and members of the clergy who have to provide assistance in the pursuit of their profession, becoming accessories to the offence of illegal residence?

3. Making illegal residence a criminal offence could result in detention for up to six months. Article 15(1) of the aforementioned Directive provides an exhaustive definition of the grounds on which detention is possible. Article 5(1) of the European Convention on Human Rights also only permits detention subject to stringent conditions. Does the Commission agree with us that making illegal residence a criminal offence — if linked to the penalty of detention, in accordance with the Netherlands’ plans — is incompatible with Article 15(1) of the directive on returning illegally-staying third-country nationals and Article 5(1) of the European Convention on Human Rights?

4. Will the Commission bring pressure to bear on the Netherlands to refrain from making illegal residence a criminal offence?

Original language of question: NL

Last updated: 22 February 2011 Legal notice

EN E-001114/2011 Answer given by Ms Malmström on behalf of the Commission (24.3.2011)

Directive 2008/115/EC1 of the European Parliament and the Council on common rules and procedures in Member States for returning illegally staying third country nationals ('Return Directive') establishes a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State. The Return Directive in itself contains no provision related to the imposition of criminal sanctions against third-country nationals who illegally entered or stayed on their territory. National legislation imposing sanctions of this kind can certainly not be considered as a transposition of the Return Directive.

The Return Directive was not expressly intended to serve as an instrument going beyond the establishment of common standards regarding when and how irregular migrants should be returned, and does not purport to harmonise the approach to be taken by Member States to irregular immigration more generally. The Return Directive may co-exist with other provisions foreseen in EU or national legislation fighting irregular immigration, provided those legislative measures are not inconsistent with the terms of the Directive. One such measures is Council Directive 2002/90/EC2 of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence Member States and the accompanying Framework Decision 2002/946/JHA which require Member States to provide for the imposition of appropriate sanctions on any person who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of laws of the state concerned on the residence of aliens.

As regards the concern expressed by the Honourable Member that churches and citizens which provide support for humanitarian reasons to those who illegally reside in the Netherlands should not be criminalised, it has to be highlighted that, according to Article 1 paragraph 2 of Directive 2002/90/EC, "Member States may decide not to impose sanctions … where the aim of the behaviour is to provide humanitarian assistance to the person concerned".

Outside the fields already harmonized by Union legislation, criminal sanctions related to offences linked to illegal entry or residence therefore remain in principle within the competence of Member States. Any national measure adopted in this field must, however, not undermine the effet utile and the harmonizing effect of the Union acquis, including the Return Directive.

As regards the question of whether measures which purport to impose criminal sanctions on irregular migrants in certain circumstances are compatible with the Return Directive, this will depend on the specifics of the legal provisions in question. However, should a Member State systematically criminalize illegal stay in its territory, and on that basis exclude all illegally staying third country nationals from the application of the Return Directive in accordance with the possibility foreseen in its Article 2(2)(b), this would have to be considered as a disproportionate measure which undermines the effet utile of the Return Directive. Likewise, national legislation which foresees that anyone staying illegally - without having committed any further offence - should systematically serve a prison sentence in an ordinary prison instead of being detained in accordance with the standards fixed by the Return Directive (detention as a last resort; detainees to be held separate from 'ordinary prisoners'; maximum periods of detention; judicial review of detention and continued detention; etc), may be considered as undermining the effet utile and the harmonizing effect of the relevant provisions of the Directive.

As regards the planned amendments to the Dutch legislation to which you refer, the Commission does not consider it appropriate to comment on draft national legislation or to intervene in any way in

1 OJ L 348, 24.12.2008 2 OJ L 328, 5.12.2007

national legislative proceedings. Once the laws transposing the Return Directive have been adopted and notified to the Commission, they will be carefully examined for their conformity with the Directive. It should also be recalled that Member States are requested, when applying EU law, to respect the rights and obligations set out in the Charter of Fundamental Rights of the .