7 Mutual recognition of expulsion decisions
| (24276)
—
COM(03) 49
| Draft Council Decision setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals.
|
| Legal base | Article 63(3) EC; consultation; unanimity
|
| Department | Home Office
|
| Basis of consideration | Minister's letter of 17 April 2003
|
| Previous Committee Report | HC 63-xvii (2002-03), paragraph 4 (2 April 2003)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
7.1 Council Directive 2001/40/EC[14]
makes provision for the mutual recognition and enforcement of
decisions made by one Member State (the 'issuing State') ordering
the expulsion of third country nationals who are present within
the territory of another Member State (the 'enforcing State').
The decisions in question are those made by a competent administrative
authority in the issuing State on the grounds that the third country
national is a serious and present threat to its public order or
national security and safety or on the grounds that the third
country national has failed to comply with national rules on the
entry or residence of aliens.
7.2 The present proposal makes provision for the reimbursement
of the enforcing State for costs (referred to as 'financial imbalances')
which may arise in a case where the expulsion cannot be effected
at the expense of the third country national concerned. When we
considered the proposal on 2 April we raised two questions with
the Minister. The first concerned the obligations imposed on Member
States to report to the Commission. The requirement to report
the total number of forced returns carried out by a Member State,
whether or not they were ones to which Council Decision 2001/40/EC
applied, appeared to us to be disproportionate. The requirement
to report the number of decisions 'which could be recognised and
enforced by other Member States' appeared to us to require statistics
to be kept on an hypothetical basis and we doubted the utility
of such an exercise. We also asked the Minister if he would seek
clarification of the term 'actual cost' as used in the proposal
in connection with the cost of detaining a person, in particular
as to whether this was to include a proportion of the capital
or other costs in building and maintaining a detention centre.
The Minister's letter
7.3 In his letter of 17 April the Parliamentary Under-Secretary
of State at the Home Office (Lord Filkin) addresses both questions.
In relation to the reporting obligations the Minister explains
that the Member States have not yet discussed these provisions
and that the Commission has not explained why they are necessary.
The Minister agrees that, "in the absence of clarification
from the Commission, there are certainly grounds for concurring
with the Committee's view that these provisions on reporting go
beyond those required for the operation of the Decision".
The Minister states that he will seek clarification of this point
at the earliest opportunity and will inform us of the outcome.
7.4 On the question of the definition of 'actual cost', the Minister
explains that the present provision (in Article 2) does not explicitly
include any element of capital costs relating to the construction
and maintenance of detention facilities. The Minister explains
that he is doubtful that such costs would be included in the calculation
of costs to be reimbursed by another Member State. He further
explains that it is particularly difficult to identify such costs,
and that any attempt to recover them would be likely to lead to
protracted discussions with the Member State concerned and to
undermine the attempts to build up the level of cooperation between
Member States in enforcing returns. The Minister explains that
the Government has taken the view that it should focus on 'clearly
identifiable costs' in seeking to agree a mechanism for implementation
of the Directive.
Conclusion
7.5 We thank the Minister for his helpful
letter. We look forward to hearing, in due course, the explanation
offered by the Commission to justify the reporting obligations
which we have criticised on grounds of proportionality.
7.6 We note the Minister's explanation
of the question of 'actual costs' in relation to accommodation
at a detention centre. As these costs are also included in those
described as 'the minimum recoverable costs' we consider that
it is particularly
important that ambiguity is avoided in defining the elements of
those costs. We look forward to further explanation, in due course,
of how the 'clearly identifiable costs' referred to by the Minister
will be defined.
7.7 In the meantime, we shall hold the
document under scrutiny.
14 OJ No. L149, 2.6.2001, p. 35. Back
| 
