HOUSE OF LORDS European Union Committee 32nd Report of Session 2005–06 Illegal Migrants: proposals for a common EU returns policy Report with Evidence Ordered to be printed 25 April and published 9 May 2006 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 166 The European Union Committee The European Union Committee is appointed by the House of Lords “to consider European Union documents and other matters relating to the European Union”. The Committee has seven Sub-Committees which are: Economic and Financial Affairs, and International Trade (Sub-Committee A) Internal Market (Sub-Committee B) Foreign Affairs, Defence and Development Policy (Sub-Committee C) Environment and Agriculture (Sub-Committee D) Law and Institutions (Sub-Committee E) Home Affairs (Sub-Committee F) Social and Consumer Affairs (Sub-Committee G) Our Membership The Members of the European Union Committee are: Lord Blackwell Lord Maclennan of Rogart Lord Bowness Lord Marlesford Lord Brown of Eaton-under-Heywood Lord Neill of Bladen Lord Dubs Lord Radice Lord Geddes Lord Renton of Mount Harry Lord Goodhart Baroness Thomas of Walliswood Lord Grenfell (Chairman) Lord Tomlinson Lord Hannay of Chiswick Lord Woolmer of Leeds Lord Harrison Lord Wright of Richmond The Members of the Sub-Committee which carried out this inquiry (Sub-Committee F (Home Affairs)) are: Lord Avebury Baroness Bonham Carter of Yarnbury Earl of Caithness Lord Corbett of Castle Vale Baroness D’Souza Lord Dubs Baroness Henig Earl of Listowel Lord Marlesford Viscount Ullswater Lord Wright of Richmond (Chairman) Information about the Committee The reports and evidence of the Committee are published by and available from The Stationery Office. For information freely available on the web, our homepage is: http://www.parliament.uk/parliamentary_committees/lords_eu_select_committee.cfm There you will find many of our publications, along with press notices, details of membership and forthcoming meetings, and other information about the ongoing work of the Committee and its Sub-Committees, each of which has its own homepage. General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/about_lords/about_lords.cfm Contacts for the European Union Committee Contact details for individual Sub-Committees are given on the website. General correspondence should be addressed to the Clerk of the European Union Committee, Committee Office, House of Lords, London, SW1A OPW The telephone number for general enquiries is 020 7219 5791. The Committee’s email address is [email protected] CONTENTS Paragraph Page Abstract 8 Chapter 1: Introduction 1 9 Background 1 9 The position of the United Kingdom 9 11 The timetable for negotiations 12 12 Conduct of the inquiry 14 13 Chapter 2: The present draft of the directive 18 14 The text of the Directive 19 14 Scope 21 15 The need for a Directive 23 16 Subsidiarity 26 17 Views on the current draft 29 17 Chapter 3: Return and Removal 31 19 Return where? 32 19 Voluntary return 41 22 Enforced removal 49 23 Detention 53 24 Period of detention 54 25 Statistics 62 27 Conditions of detention 66 28 Children 72 30 Return of unaccompanied children 81 33 Status of those not removed 83 33 Chapter 4: Judicial supervision 88 35 Appeals against return decisions 90 35 Judicial oversight of detention 100 38 Legal advice and assistance 108 40 Chapter 5: The re-entry ban 117 42 The legal base of Article 9 118 42 The provisions of Article 9 122 43 Arguments of principle 124 43 Practical problems facing the United Kingdom 133 45 Chapter 6: Conclusions and recommendations 139 48 General conclusions 139 48 The present draft of the Directive 145 48 Return and removal 148 48 Conditions of detention 154 49 Children 156 49 Status of those not removed 159 50 Judicial supervision 161 50 The re-entry ban 166 50 Appendix 1: Sub-Committee F (Home Affairs) 52 Appendix 2: Call for Evidence 53 Appendix 3: List of Witnesses 54 Appendix 4: Visit to Yarl’s Wood Immigration Removal Centre 55 Appendix 5: Full Text of the Draft Directive 58 Appendix 6: Council of Europe Guidelines on Forced Return 70 Appendix 7: List of Acronyms 78 Appendix 8: Other Relevant Reports from the Select Committee 81 ORAL EVIDENCE Ms Judith Farbey, Barrister, Tooks Chambers, and Dr Helen Toner, Lecturer in Law, University of Warwick, Immigration Law Practitioners’ Association (ILPA) Written evidence 1 Oral evidence, 11 January 2006 9 Sir Andrew Green, KCMG, Mr Harry Mitchell, QC, Honorary Legal Adviser, and Mr Andrew Dennis, Head of Research, MigrationWatch UK Written evidence 17 Oral evidence, 11 January 2006 21 Mrs Susannah Simon, Director, European Policy Directorate, Mr Tom Dodd, Director, International Delivery Directorate, Mr Simon Barrett, Assistant Director, Detention Services Policy Unit, and Mr Digby Griffith, Director, Enforcement and Removals Secretariat, Immigration and Nationality Directorate, Home Office Written evidence 27 Oral evidence, 18 January 2006 32 Supplementary written evidence (Mr Tom Dodd) 44 Mr Jeremy Oppenheim, Director, National Asylum Support Service, International Delivery Directorate, Immigration and Nationality Directorate, Home Office Oral evidence, 18 January 2006 46 Supplementary written evidence 52 Ms Anja Klug, Senior Legal Officer, Geneva, Ms Jacqueline Parlevliet, Deputy UK Representative, United Nations High Commissioner for Refugees (UNHCR), Ms Gemma Juma, International Protection Manager, and Ms Nancy Kelley, Head of International and UK policy, Refugee Council Written evidence 54 Oral evidence, 25 January 2006 69 Ms Anne Owers, CBE, Chief Inspector of Prisons, HM Inspectorate of Prisons, Professor Al Aynsley-Green, Children’s Commissioner and Professor Carolyn Hamilton, Senior Legal Adviser, Children’s Commission Written evidence (HM Inspectorate of Prisons) 83 Oral evidence, 1 February 2006 86 Mr Tim Baster, Legal Director, Bail for Immigration Detainees (BID) Written evidence 98 Oral evidence, 1 February 2006 102 Mr Jan de Wilde, Chief of Mission, and Ms Ana Fonseca, Project Development Office, International Organization for Migration Written evidence 110 Oral evidence, 8 February 2006 111 Professor Elspeth Guild, Kingsley Napley, Solicitors Oral evidence, 8 February 2006 120 Mr Tony McNulty, MP, Minister of State for Immigration, Citizenship and Nationality, Mr Tom Dodd, Director, International Delivery Directorate, Mrs Susannah Simon, Director, European Policy Directorate, Immigration and Nationality Directorate, Home Office Oral evidence, 1 March 2006 127 Supplementary written evidence (Mr Tony McNulty MP) 137 Ms Bridget Prentice, MP, Parliamentary Under-Secretary of State, Department for Constitutional Affairs Written evidence 140 Oral evidence, 1 March 2006 142 Supplementary written evidence 148 Mr Jonathan Faull, Director General, Directorate-General Justice, Freedom and Security (DG JLS), Mr Fabian Lutz, Immigration Unit, European Commission Written evidence 150 Oral evidence, 2 March 2006 153 Mr Nicola Annecchino, Head of Unit B2 (Immigration & Asylum) DG JLS, Mr Martin Schieffer, Section Head, Mr Fabian Lutz, Immigration Unit, European Commission Oral evidence, 2 March 2006 162 Mr Ilkka Laitinen, Executive Director, European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) Oral evidence, 2 March 2006 168 Ms Cristina Castagnoli, Secretariat, Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), European Parliament Oral evidence, 3 March 2006 175 Dr Alan Hick, Head of Unit, Section for Employment, Social Affairs and Citizenship, Mr Pierluigi Brombo, Administrator, Section for Employment, Social Affairs and Citizenship, European Economic and Social Committee (EESC) Oral evidence, 3 March 2006 184 Lord Triesman, Parliamentary Under-Secretary of State, Foreign and Commonwealth Office and Mr Tom Dodd, Director, International Delivery Directorate, Immigration and Nationality Directorate, Home Office Oral evidence, 8 March 2006 190 Supplementary written evidence (Lord Triesman) 196 Mr Manfred Weber, MEP Oral evidence, 8 March 2006 197 WRITTEN EVIDENCE Bar Council Law Reform Committee 201 Mr Sergio Carrera, Centre for European Policy Studies (CEPS) 201 Church Pressure Groups 205 Commission for Racial Equality (CRE) 210 Immigration Advisory Service (IAS) 217 Joint Council for the Welfare of Immigrants (JCWI) 220 Refugee Action 225 Refugee Children’s Consortium 229 NOTE: References in the text of the Report are as follows: (Q) refers to a question in oral evidence (p) refers to a page of written evidence ABSTRACT ___________________________________________________________________________________________________________________________________________________________________________________________________________________ ● The principle of a common EU policy for the return of illegally staying third-country nationals is one with which we sympathise, though it is questionable whether the EU should proceed with this before a common policy governing admissions is in place. ● The current proposal is right to give primacy to voluntary return. Forcible removal is an alternative which should be used only when all opportunities for voluntary return have been exhausted. ● The mandate given to the Commission in the Hague Programme was to provide for common standards for persons to be