17 Mutual recognition of expulsion decisions
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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.
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| Legal base | Article 63(3) EC; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 11 August 2003
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| Previous Committee Report | HC 63-xvii (2002-03), paragraph 4 (2 April 2003), HC 63-xxi (2002-03), paragraph 7 (14 May 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
17.1 Council Directive 2001/40/EC[29]
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').
17.2 The relevant expulsion decisions are ones based
either on the grounds that the third country national is a serious
and present threat to 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.
The decisions based on a serious and present threat to public
order which are eligible for recognition are those taken following
a conviction resulting in at least one year's imprisonment, or
where there are grounds for believing the third country national
has committed serious criminal offences or where there is 'solid
evidence' of intention to commit such offences within a Member
State.
17.3 We considered the present proposal, which is
ancillary to the above Directive, on 2 April and 14 May. We noted
that it made provision for the reimbursement of the enforcing
State for costs (referred to as 'financial imbalances') which
might arise in a case where the expulsion could not be effected
at the expense of the third country national concerned, and we
raised two points.
17.4 The first concerned the obligation imposed on
Member States to report to the Commission 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, which
obligation appeared to us to be disproportionate. The second concerned
the meaning 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.
We thought it important that ambiguity should be avoided in defining
the elements of costs which would be recoverable under the proposed
Council Decision.
17.5 We held the document under scrutiny pending
further comment from the Minister on the proportionality of the
reporting requirements and the definition of recoverable costs.
The Minister's letter
17.6 In her letter of 11 August the Minister of State
at the Home Office (Beverley Hughes) addresses both questions
in the light of further discussions in the Council working group.
In relation to the reporting obligations the Minister comments
as follows:
"I am grateful to the Committee for having drawn
attention to the apparently onerous reporting requirements as
proposed by the Commission (in Article 4). The UK raised this
matter at the July meeting of the Council Working Group and highlighted
the need for reporting requirements to focus on the minimum information
needed to allow for implementation of the Directive. The UK received
support from a number of Member States and the Italian EU Presidency
agreed to re-draft this section to focus reporting requirements
on the number of expulsion decisions which were, a) reimbursed,
and b) refused. We consider this to be a much more appropriate
requirement."
17.7 In relation to the definition of recoverable
costs, the Minister reports the Government's view that the Decision
should strike an appropriate balance between reflecting the true
cost of implementing expulsion decisions on behalf of other Member
States and the need to avoid an 'overly complex, bureaucratic
approach'. The Minister adds that the Government is seeking to
achieve this balance by focussing the discussion on reimbursement
for the following items:
"— transport
costs to the country of origin for returnee and up to two escorts
(where required);
— administrative costs, including visa
fees and issuing of travel documents by the country of origin;
— accommodation costs and per diem
for escorts (where required);
— cost of detaining the returnee; and
— if required, provision of medical treatment
to the returnee and, in emergency cases, to the escorts during
the removal operation."
Conclusion
17.8 We thank the Minister for her helpful letter.
It is now apparent that the scope of the reporting requirement
will be reduced.
17.9 We note the Minister's explanation that there
is a need to balance being able to recover all the costs of carrying
out expulsion decisions against adopting an overly complex bureaucratic
approach. We are grateful to the Minister for her clear identification
of those elements of cost which ought to be recoverable under
the proposal, and we believe this approach would remedy the ambiguity
which concerns us.
17.10 In the light of the Minister's explanations,
we are content to clear the document.
29 OJ No. L149, 2.6.2001, p. 35. Back
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