European Parliament Directive 2008/15/EC: A critique from NAM and Global South

Non-Aligned Movement has expanded its scope from the political domain and as the largest collective gathering of the Global South, now concerns itself with a host of social and economic issues, which directly affect the citizens of the developing world. Migration is one such important issue both in social as well as the economic domain. The Non-Aligned Movement has consistently emphasized the need for effectively promoting and protecting the human rights and fundamental freedoms of all migrants, regardless of their immigration status, in conformity with the Universal Declaration of Human Rights and the international instruments to which countries receiving such immigrants are signatories too. In this context, issues associated with the discrimination faced by immigrants have been a major concern of NAM summits and declarations. In cognizance of this, the movement has expressed its concerns in successive summits and Ministerial Declarations over a European Parliament Directive 2008/15/EC of June18, 2008 on “Common Standards and Procedures for returning illegally-staying Third- Country Nationals”.
This directive provides the Member States of the European Union (EU) with common standards and procedures for returning third-country nationals staying illegally on their territories, with certain exceptions. This directive establishes common standards and procedures for Member States, whereby illegally staying third-country nationals may be removed from their territories. It lays down provisions for terminating illegal stays, detaining third-country nationals with the aim of removing them and procedural safeguards.
Since the early 1990s, the issue of migration of third country nationals to the EU has gradually become more important. The long-term result of processes of immigration initiated for economic or political reasons has led to more and more diversification within European society. If the criterion of possessing civil, socio-economic and political rights enjoyed by the residents of EU is considered, then currently, the EU residents can be classified into three distinct groups.
In the first and second groups are included citizens of EU member state living within the territorial boundaries of their nation and citizens of EU member states residing in another EU member state. The third group of residents comprise of people from third-state settled in an EU member country. As per the EU definition, any person who is not a citizen of the Union within the meaning of Article 20 (1) of the Lisbon Treaty, including stateless persons is classified as a Third Country National. This group consists mainly of immigrants, asylum seekers and refugees.
As mentioned earlier, considerable differences exist within this class of citizens. While, on one end of the spectrum are those citizens who are legal residents and enjoy civil, socio-economic and political rights on the opposite end are the marginalized ‘other’ who are vulnerable to socio-economic and political exclusion”. Moreover, since nationality of a member state is a prerequisite for European Union citizenship, a significant number of immigrants are left out of the benefits of EU Citizenship due to variance in the nationality laws in EU member states lends an exclusivist character to EU Citizenship.
Though the subject of coordination of rules concerning conditions of residence, entry, employment, free movement between the member states, asylum status and the position of refugees has continued to be addressed in a series of policy communications and European Commission reports, the third country nationals and immigrants do not enjoy the social and political rights on the same footing as the nationals of the EU member states and are subject to discrimination as a result of certain legislations such as the Directive 2008/115/EC concerning return of illegal immigrants in EU Member states. The Non-Aligned Movement has taken note of the discriminatory nature of this Directive 2008/115/ EC.
Successive NAM summits and ministerial declarations since 2009 have stated that the Directive constitutes a serious violation of relevant international human rights instruments, in particular the Universal Declaration of Human Right, having the effect of criminalizing migration and exacerbating social tensions, racism, racial discrimination and xenophobia and entail mistreatment of migrants and their families.
It may also be mentioned here that NAM has provided with one of the earliest criticism of Directive during the 15th NAM summit at Sharm el Shiekh in 2009 and subsequent NAM declarations find its mention. The NAM Algiers Ministerial Declaration of 2014 expressed concern over the legislation and its varying interpretations that may lead to a discriminatory treatment and restrict the human rights and fundamental freedoms of migrants. The position of the Non -Aligned Movement is consistent with the position of the United Nations High Commissioner for Refugees (UNHCR) which states that the concerned Directive does not effectively take into account safeguarding access for effective legal remedy for the immigrants.
Even legal observers within the European Union have commented that Directive compromises the objective of providing for ‘clear, transparent and fair common rules with which to regulate return procedure and the in the absence of common legal frameworks among EU member states,taking cognizance of the fact that a large number of immigrants belong to the nations of the Global South – consisting of largely NAM member states – the movement has consistently emphasized the need for all States to address the issue of international migration through a cooperative dialogue on an equal footing ad in this regard the Tehran Declaration of the NAM in 2012 urged the European Union and its member states from refraining from any such legislations that discriminate against the immigrants and third country nationals in EU.

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