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‘Illegal Migrants’, Gender and Vulnerability: The Case of the EU’s Returns Directive

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Abstract

Feminist legal efforts to make sense of the external migration policies of the European Union (EU) have focused almost exclusively on the EU’s initiatives against trafficking in women. This article examines one of the more neglected areas of EU immigration policy—the return of ‘illegal immigrants’. It analyses the so-called 2008 Returns Directive in the light of the multidimensional inequalities experienced by migrant women, which affect their migration status and expose some of them to the threat of removal. Owing to insecurities over external migration, the Directive constructs even the most vulnerable migrants as a threat to be controlled and is likely to result in detrimental consequences for many migrants, and in particular already vulnerable women who are likely to be further disadvantaged by it.

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Notes

  1. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (hereafter referred to as the Returns Directive), OJ L 348, 24 December 2008, 98. The Directive does not apply to the UK and Ireland which have exercised their opt-out. Member States have until 24 December 2010 to transpose the Directive (except regarding Article 13(4), where they have until 24 December 2011).

  2. ‘Illegal’ is a politically loaded term that this article will avoid, unless referring to official documents using it (in particular, EU institutions consistently use the term ‘illegal’ when referring to irregular migrants from outside the EU). The term ‘irregular’ will be used elsewhere.

  3. Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, COM (2005) 391 final, 1 September 2005. It is based on the competence on immigration policy measures regarding “illegal immigration and illegal residence” (Art 63(3)(b) of the EC Treaty).

  4. Most notably, many Member States’ governments and the then Justice, Freedom and Security Commissioner.

  5. Reservations were voiced e.g. by Amnesty International, the European Council on Refugees and Exiles, the European Women’s Lobby and, in the EP, by the Greens/EFA, the Independence/Democracy Group and the Confederal Group of the European United Left/Nordic Green Left.

  6. This is not to say that in some cases EU citizens, especially from the new Member States, cannot be disadvantaged as migrants as well (see Currie 2009)—EU citizens, however, are to a large extent protected against irregular migration status and the risk of removal.

  7. COM (2005) 391 final, supra n 3 at 1.

  8. Member States will be allowed to keep rules that are more favourable to irregular migrants (Art 4) but that seems unlikely. Indeed, in Italy the Minister of the Interior Maroni announced immediately that the government would create secure centres to incarcerate asylum-seekers and increase the maximum length of detention to 18 months, from its existing limit of 60 days. See Migreurop (2008).

  9. See Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105, 13 April 2006, 1.

  10. Member States may decide to not apply the Directive to third-country nationals who are refused entry, or stopped in connection with an irregular border crossing (Art 2(2)(a)).

  11. As irregular migration is the flipside of legal migration, when legal avenues change, so does irregular migration. An excellent example of this at the EU-level is Romania, which has in less than a decade shifted from being a major source of irregular migrants in the EU to producing ever fewer (and soon hardly any) because of Romania’s EU membership in 2007.

  12. Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 229, 29 June 2004, 35.

  13. Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3 October 2003, 12.

  14. See Art 14 of Directive 2003/86/EC, ibid. EU citizens’ spouses do not face such limitation.

  15. See Art 13 of Directive 2004/38/EC, supra n 12. The breakdown of a marriage will not result in the loss of the right of residence if the marriage has lasted at least 3 years or if “particularly difficult circumstances, such as having been a victim of domestic violence” were present during the marriage.

  16. See Art 15 of Directive 2003/86/EC, ibid.

  17. Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ L 155, 18 June 2009, 17.

  18. Demand for women as carers and domestic workers is especially strong in the southern Member States (Ambrosini 2001; Calavita 2006; Triandafyllidou and Gropas 2007).

  19. Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, 30 September 2004, 12, esp. Art 9.

  20. Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326, 13 December 2005, 13.

  21. UNHCR statistics show vastly different protection rates depending on which EU Member State asylum seekers apply to for refugee status (UNHCR 2008).

  22. The language of ‘victimhood’, often used in the context of trafficking, if of course problematic (see, e.g. Munro 2006; Dauvergne 2008) but EU documents consistently use the term ‘victim’ to separate those who have experienced trafficking from other irregular migrants.

  23. See Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, OJ L 203, 1 August 2002, 1.

  24. See Framework Decision 2002/629/JHA, ibid, Art 1.

  25. This is not to say women are not disproportionately affected by trafficking; it is, however, to say that it is impossible to establish how many men might also be affected. Even with regard to women, enforcement attention is still predominantly focused on certain sectors, most notably prostitution, while exploitation in other sectors can remain invisible.

  26. Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261, 6 August 2004, 19.

  27. Directive 2004/81/EC, ibid, Art 13 and Art 14.

  28. European Commission working document: Evaluation and monitoring of the implementation of the EU Plan on best practices, standards and procedures for combating and preventing trafficking in human beings, COM (2008) 657 final, 17 October 2008, 4.

  29. The definition of ‘voluntary return’ in the Directive does not in fact correspond with the common understanding of ‘voluntary’ but actually refers to ‘mandatory return’, i.e. the return of people required to leave (as opposed to choosing to leave). See European Council on Refugees and Exiles, Comments from the European Council on Refugees and Exiles on the proposal for a directive of the European Parliament and the Council on common standards and procedures in Member States for returning illegally staying third country nationals, COM (2005) 391 final, 4.

  30. See Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31, 6 February 2003, 18, Art 17(1).

  31. Directive 2004/81/EC, supra n 26.

  32. Despite not having, in most cases, committed any (non-migration related) criminal offence, all irregular migrants falling within the Directive’s scope can be detained for 6 months (possibly in a normal prison). Six-month detention is, as pointed out during the negotiations, equivalent to a year’s prison sentence (House of Lords Select Committee on European Union 2006, para 58)—and 18 months’ detention, which will now be possible in some circumstances, obviously goes far beyond that.

  33. Article 33 of the 1951 Convention Relating to the Status of Refugees, 189 UNTS 150.

  34. In fact, any removed migrants wanting to re-enter the EU will have to resort to irregular means. This could lead to increased irregular migration, and mean that more migrants are likely to be exposed to abusive migration. This is likely to increase trafficking and other kinds of exploitation of female migrants, who are typically less able to pay for smuggling services and thus have less control over the conditions in which they migrate.

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  1. Faculty of Law, Monash University, Building 12, Clayton, Vic, 3800, Australia

    Heli Askola

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Askola, H. ‘Illegal Migrants’, Gender and Vulnerability: The Case of the EU’s Returns Directive. Fem Leg Stud 18, 159–178 (2010). https://doi.org/10.1007/s10691-010-9153-2

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