EU DETERMINED TO CREATE AND THROW OUT "ILLEGAL" IMMIGRANTS - AND WHAT WERE WE ALL?

A contribution on the European Directive on

the Return of "illegals" -- or the "directive of shame"

By LUIS GONZALEZ

SEVILLE, Spain -- The European Parliament ratified by 369 votes in favor, 197 against and 106 abstentions, a directive drafted by the European Commission and ratified by the Council of Ministers of Interior of the EU, whose objective is the expulsion of immigrants who entered "illegally" in the territory of the EU.

According to the officials of the European Commission, the goal is to find ways to expel 8 million immigrants, for which a fund of 676 million euros will be allocated. Remember that Labor Minister of Spain pledged to repatriate to their country of origin, with the directive or without it, one million immigrants.

The directive result is the denial of the rights of immigrants on an arbitrary basis. This denial already existed in the previous directives on immigration, but it has now reached new depths. As we shall see, many provisions may apply or not apply to an immigrant in particular, depending solely on the decision of an "authority" of any kind.

Indeed, it depends on the authorities whether the immigrant is deported or not, whether jailed or not, etc. It puts "illegal" immigrants in a situation of total submission. They must accept the job and terms to be offered, and they may not denounce bad working conditions, nor undertake collective action, without the risk of deportation. And if you organize and protest, they can apply the directive in all its rigor.

A recent report by the Bank of Spain said that the presence of immigrants "may have a positive effect on economic adjustment." According to the report, we must consider the fact that foreigners "found a job faster than the national workers," and with lower wages and bigger needs, they are inserted in with less difficulty. In addition, the Bank continues, there are several elements that determine the greater flexibility of immigrants, who occupy 14% of jobs. More than half are CSD (against less than a third of Spanish) and their job search is "more intense than that of native workers." The fact that their social ties are more tenuous than those of Spanish-born workers determines their greater willingness to accept any job.

With these premises, the Bank of Spain concludes that the economy may attend "a growth in unemployment higher in the short term," because it is easier for companies to dispose of this labor force than another more stable one. Insofar as this will result in wage declines -- the greater the number of unemployed, the more develops the willingness to accept low wages in the face of the difficulty of finding a job. The effect will be positive," according to the Bank of Spain.

As you can see, for this institution (which is a branch of the European Central Bank in Spain), the existence of immigrants helps bring down the cost of the labor force. If we add the millions of immigrants continually threatened with deportation, the effect is even more important. Hence follows the directive.

The preliminary consideration No. 20 says that, "This Directive respects the fundamental rights and takes into account the recognized principles, particularly the Charter of Fundamental Rights of the European Union". This demonstrates precisely the empty legal value of the "charter of fundamental rights" upon which cling so often the defenders of the European Union and in particular the European Trade Union Confederation (ETUC).

The central element of the directive is to establish a category of human beings called "citizens of a third country - illegal", which deprives them of rights common to all citizens. Moreover, to be defined as such, it is not necessary to have entered illegally in to EU countries. The directive defines as "illegal residence" the presence on the territory of a Member State, a citizen of a third country who does not or has ceased to fulfill the conditions for entry contained in the Article 5 of the Schengen Borders Code or other conditions of entry, residence or stay in that state." (Art. 3.b). (Emphasis added).

Thus, they can apply the directive to an immigrant who has exhausted his unemployment benefits and who lost, according to Spanish law, the right of residence. In any case, "Member States could decide not to implement this directive to citizens of third countries who" are arrested at the border (Art. 2.2a).

All these "citizens of a third country to illegal residence" will be submitted by Member States to "a return decision" (Art. 3.d), except in cases where for some reason they are given the right to stay. The directive defines "return" as "the return process, whether through voluntary acceptance of an obligation to return, either forced in his/her country of origin, or in a transit country on the basis of Community readmission agreements, bilateral or another type, in a third country where the citizen to a third country decides to return voluntarily and where they will be admitted."

In the event that "they are illegally in the territory of a Member State and would permit valid residence or other authorization for them to recognize a right of residence issued by another Member State, they will be required to return immediately from the territory of the Member State ", under penalty of expulsion.

The decision to return "defines a relevant time, the duration of which will vary from seven to thirty days, for voluntary departure" (Art. 6 bis.1). It is cynical enough to consider this as a departure "voluntary." Moreover, the authorities may choose: "Member States will extend as necessary the deadline of voluntary departure for a period of necessary caution, given the circumstances of the case in question" (Article 6 vis.2), but also "If there is a risk of absconding, or if the individual refuses an application for legal residence manifestly unfounded or fraudulent, or if the person in question represents a risk to public safety, public order or national security, Member States may refrain from granting a deadline for voluntary departure, or grant a period less than seven days"(Art. 6.bis.4).

So between 7 and 30 days or less or more, depending on what is decided.

However, if the immigrant is not assigned deadlines, or if they fail to comply with the obligation to "voluntarily" leave the territory, there will be more delays; or if they will not leave the territory, they will be expelled. How? "Member States may adopt an administrative decision, a resolution judicial or independent judgment by which the expulsion will be delivered." According to the directive, any "authority" may therefore decide on the expulsion.

Although the directive said cynically that "implementing this directive Member States will normally take into account a) the best interests of the child b) family life" (Article 5), it turns out that "the authorities the Member State concerned, before expelling their territory unaccompanied minors, must have received assurances that the person in question will be given to a member of his family, a guardian or previously designated to receive adequate services in the State of return "(Art.8 bis, emphasis added). Remember that as explained above, the return can be achieved "either forced in his country of origin, or in a transit country under Community readmission agreements, or bilateral or another type ".

The minor could be deported to a country that is not his country of origin and be entrusted to "receive appropriate services." Who defines it? The directive does not say a word. In principle, according to agreements signed by the Spanish State, this means that a minor of Senegal may be expelled to Morocco and handed over to an orphanage in this country.

According to the directive, "the decisions of repatriation will be accompanied by a ban on return if no time has been allowed to leave the country voluntarily, or if the obligation to return has not been respected. In other cases, decisions will be back with a ban of entry "(Art. 9.1).

Indeed, if the immigrant is deported, a ban on return will be imposed. But if the individual leaves "voluntarily", the decision on this question will be made by the "authority". The duration of the ban on entry will be determined by taking into account all the circumstances concerning the case and, in principle, its duration will be no more than five years." "It may be more than five years if the citizen to a third country represents a serious threat to public order, public safety or national security." "The authority can prohibit the return of immigrants within its own decide on the basis of considerations that should not justify or prove.

But it also does not prohibit this: "Member States may refrain to issue, revoke or suspend a ban on entry in specific cases, for humanitarian reasons. Member States may withdraw or suspend the ban on entry into specific cases or for certain types of cases or for other reasons." The duration of the ban on entry into the EU, as we have seen, can go up to 5 years or more, "if the citizen to a third country represents a serious threat to public order, Public safety or national security." The directive stipulates no obligation to prove this and no appeal mechanism against it. But obviously, it puts in the hands of police the EU a clear opportunity to expel any immigrant who disturb public order (for example, by demonstrations, occupations or strikes) or leading a political action against the EU institutions.

As with the resolution on the return, full powers again to who decides: 'return decisions and - if passed - the decisions banning return and expulsion will be stipulated in writing and determined on factual basis and law, as well as information on remedies available. Information on the facts may be subject to limitations in cases where the law allows restrictions on the right to information, especially in order to protect the security or national defense or public security, or in the prevention, investigation, detection and trial of offenders" (Art. 11.1). Thus the police and intelligence services can on grounds of "security" or an "ongoing investigation" not have to explain the expulsion.

Nor is it necessary for immigrants to know the reasons given for their expulsion. Article 11, paragraphs 2 and 3 establishes that "Member States shall provide, upon request, a written or oral translation of the main elements of return decisions, in accordance with the provisions of paragraph 1, including information on remedies, in a language the citizen to a third country understand or which can reasonably assume he understands. Member States may choose not to apply paragraph 2 on people who have entered illegally into the territory of a Member State and then did not obtain permission or the right to live there." At most, "a written or oral translation of the main elements", which is no longer in its own language, it will be enough of a language "as may reasonably be expected to understand." And it provided the state with the ability to decide not to opt for a solution not furnished with a translation of any kind.

Is there an appeal against this decision to expel? According to the directive "will be given to citizens of third countries affected the right to oppose an effective remedy against the decision to return or requesting that the review, ... before a legal body, an administrative authority or other competent body ". That is to say that it does not recognize the right of judicial supervision. They will have free assistance if the national standard allows it.

And what occurs while they decide on the expulsion? "Member States may intern citizens of third countries subject to a return process for the sole purpose of preparing the return or execution of the eviction process, especially when there is risk Leak (or) the citizen to a third country in question makes it difficult or avoids the preparation of the return process or expulsion. ... The internment will be decided by administrative or judicial authorities "(Art. 14).

How long can this last "internment"? "Each member state will set a limited period of internment, which may not exceed six months," but "Member States may extend the period specified in paragraph 4 for a limited period not exceeding twelve months, in accordance with the law internally, in cases where, despite the fact that they have made every reasonable effort, they can assume that the deportation operation will continue because of lack of cooperation of citizens of third countries concerned or by delays in obtaining the necessary papers that third countries should issue ". So, the foreigner can be detained up to 18 months, "if it does not collaborate" with his expulsion. "The preventive detention will be reviewed at reasonable intervals when the person of nationality of a third country or ask the job." But what are these reasonable "deadlines "? The directive does not specify.

Where will these immigrants be interned, individuals who, it must be remembered, had not committed any crime and were only seeking work in Europe and something to eat? According to the directive, "as a general rule, internment will be in specialized internment centers. In cases where a member state can not provide housing in a centre specializing internment and the need to have recourse to a penitentiary centre, citizens of third countries subject to internment will be separated from ordinary prisoners" (Art. 15.1). That is to say they will be in "internment centers", concentration camps in a way, or in prisons.

Will they have the right to legal assistance? "When the internment has been pronounced by an administrative authority, Member States will establish rapid judicial control of the legality of the internment, to be established as soon as possible at the outset of internment. Either we give the citizen to a third country concerned the right to initiate a process for the legality of his detention is subject to judicial control fast, which should be decided as soon as possible after the Commission's Procedure "(Art. 14.2).

What is this time called "as soon as possible"? No concrete deadline. And in addition Article 15.3 specifies that "in cases where an unusually large number of citizens of third countries are repatriated it will require a significant burden unexpected in view of the capacity of facilities internment of a Member State or its staff administrative or judicial, the Member State concerned may decide, as long as this exceptional situation, given longer periods for judicial review." If the authors of this directive are ashamed to deport 8 million immigrants, is not it more likely that this an "unusually large number of citizens of third countries" and that therefore, the deadline for consideration of a case by the judge, already undetermined by the standard, will go up indefinitely?

Will they have the right to the assistance of lawyers? "Subject to prior request, citizens of third countries will be allowed, under internment, to come into contact at the right time with their legal representatives, their family members and consular authorities competent" (Art. 15.2). At the appropriate time? What is this time? There is no guarantee that these new pariahs are prohibited from now on.

This does not only harm those who, from unions and organizations defending human rights, are protesting this horrible directive. But this is not an isolated event. Although it requires a qualitative remedy, it is only the result of any policy of the European Union towards immigrants: from Maastricht Treaty and the Schengen Agreement of 1985, which already define a common admission and expulsion of foreign citizens, until the creation of listings citizens "ineligible" in the EU; of the various European directives on immigrants, as with the Directive 2003/86/EC of 22 September, on the right to family reunification that restricts the right to be reunited with those who have "fixed and regular income sufficient for their own subsistence and that members of their families, without resorting to social assistance system of the Member State in question "(Article 7), Directive 2003/109/EC on the status of citizens of third countries - Council Decision 2004/573/EC" on the organization of joint flights for the expulsion from the territory of two or more Member States, citizens of third countries which apply the resolutions of expulsion" specifies "the use of coercive measures" and specifies that the organizers decide how they will advertise the expulsion order, but that "normally, information on the operation of expulsion will be published only when it is done."

Recall that on September 7, 2006, the European Commissioner on freedom, security and justice, Mr. Fratini, requiring greater legal severity against those who provide work to undocumented immigrants within the European Union and voted against the massive adjustments. At that time, the vice-president of the Spanish government, Mrs. Teresa Fernandez de la Vega responded "there should no longer be any adjustments, no."

It is undoubtedly necessary to fight for the repeal of this directive of shame but we must also demand the repeal of all EU directives against workers and immigrants.

As an activist convinced that the interests of workers and peoples of Europe lies with the break with the European Union and the dismantling of the institutions of Brussels to establish a union of peoples and nations of Europe freed from exploitation and oppression, I believe that we must achieve the broadest unity among organizations working for the cancellation of this and all anti-workers directives.
 

Note: Luis González is a health care union leader in Seville, Spain, and is the editor of the newspaper Información Obrera.