“Article one – Subject Matter
This directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as of international law, including refugee protection and human rights obligations.”"
A directive born in a particular political context
A common immigration policy has become an urgent necessity. The debate came at the centre of the stage in particular after the victory in Italy of Silvio Berlusconi and his ally, the Northern League, an extreme right party which was even strengthened by the result of the last Italian elections on April 13 and 14. Berlusconi, indeed, under repeated pressure by the League, anticipated that he would try to bring the issue of immigration at the European level, implying that his government would in any case act nationally, otherwise.
This was followed by the proposal of a European pact on immigration proposed by Brice Hortefeux, clearly in the same line of the demands of the Northern League. Confronted with a fait accompli, the EU institutions finally had no choice but to propose as soon as possible a framework directive on immigration, in order to ensure that Member States do not take decisions on immigration on their own, which would endanger the balance of Europe.
Unconvincing arguments were used to defend the text
The “Return Directive”, therefore, thanks the co-decision procedure, was submitted to the European Parliament which adopted it. Two major arguments were raised in defense of the directive: • this directive is a balanced and necessary compromise; • this directive sets the framework of a European immigration policy, which is an indispensable step towards more Europe; therefore, the content of the text does not matter, it is better than nothing.
However, these two arguments do not justify such a text. This directive is not a balanced and necessary compromise. On the contrary, it is a pure product of the conservative ideas spread by the right-wing parties members of the European Popular Pary (EPP) and by populist and xenophobic parties like the National Front in France, the Northern League in Italy or the former Pim Fortuyn list in The Netherlands. Too many elements, which could not be amended by the European Socialist Party (ESP), are present in the text.
From the fight against illegal immigration to the criminalization of immigration
This text was initially designed for fighting illegal immigration. Obviously, in a purely conservative logic, the text proposes the exact opposite of a genuine immigration policy. It is the expulsion, through detention centres, which is at the heart of this directive. But the expulsions do not restrict in any way the arrival of migrants who, if determined to leave their country - for certainly understandable reasons - will surely manage to find some way for returning to Europe.
On the contrary, such a policy will encourages illegality as, on the one hand, Member States will only pursue rather than regulate illegal migrants and, on the other hand, this defensive reaction will be perceived by migrants as an invitation to come to Europe. Indeed, since Europe is doing everything for protecting its territory, it must consequently be an attractive and privileged place!
The directive also bears a worrying violation of human rights. It is explicitly stated that illegal immigrants - indeed the majority of migrants entering EU Member States, given the real difficulty for obtaining documents - will be placed in retention centres, built for that purpose, for a maximum of six months, with an option to extend this period of twelve more months…
This is de facto the criminalization of immigration, which becomes accepted throughout this directive. Immigrating becomes a crime that is being punished, in addition to the “removal” of the migrant, by the punishement of prison in a retention camp, of which we all know the deplorable living conditions.
The “return” directive, better than nothing?
But is this better than nothing? In a strictly legal sense, of course, it is difficult to argue that this is not better than nothing, as indeed it creates a European framework for immigration… but what framework! The legal argument that emphasizes the technical aspect ("more Europe") on the political aspect (a conservative directive), is null on the political level since, in fact, this directive is not better than nothing, it is simply nothing…
Nothing why? Nothing because this directive gives body at the European level of the conservative wills of national righ governments such as those of France or Italy. We have not advanced, we have not built more Europe, we have simply modelled at the European level the immigration policy sought by a good part of Member States.
Eventually, this will enable Member States who are governed by right parties to pursue a more conservative policy of immigration without being harassed by either the EU or other Member States.
The European Parliament and the “leftist” no to Europe
After the rejection of the Treaty establishing a Constitution for Europe by France in particular, many asked themselves whether such “no” was a leftist no. Proponents of the leftist no claimed this as a popular leftist no, a people’s no. The extreme right also claimed the people’s no. Hard to decide: a no of the left, which is somehow still pro-European, or no of the right, fundamentally hostile to Europe, to progress and to social ideas?
To believe the French proponents of the leftist no, the Dutch and French rejections of the Treaty establishing a Constitution, and then the Irish rejection of the Treaty of Lisbon, would be the expression of peoples for a more social Europe, a Europe free of the policy of the right. Ironically, the Europen peoples spoke today on the subject of the “return” directive, and we are far from having witnessed a progressive expression of their will.
Indeed, if there is a popular institution, directly representing the peoples of Europe, this is the European Parliament. But the representatives of the people, far from rejecting a deeply conservative text, have censed it. It is clearly not the fault of Europe if such a directive will enter into force. The responsibility lies directly on the European right: the EPP in the European Parliament; the right-wing governments sprung from the universal suffrage in the Member States.
Dislike it or not to the leftist Eurosceptics: today, when the poeples of Europe speak, it is certainly not to deny the liberal and conservative policies, but alas, quite the contrary, for supporting them.