Ad-Hoc Query on Payment of the Costs Associated with (Administrative) Expulsion. Requested by CZ EMN NCP on 11 th May 2011

Transcription

1 Ad-Hoc Query on Payment of the Costs Associated with (Administrative) Expulsion Requested by CZ EMN NCP on 11 th May 2011 Compilation produced on 11 th July 2011 Responses from Austria, Czech Republic, Estonia, Finland, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovak Republic, Sweden and United Kingdom (16 in Total) Disclaimer: The following responses have been provided primarily for the purpose of information exchange among EMN NCPs in the framework of the EMN. The contributing EMN NCPs have provided, to the best of their knowledge, information that is up-to-date, objective and reliable. Note, however, that the information provided does 1. Background Information The Czech Republic faces problems with issuing and delivering decisions on the obligation of a foreigner to pay costs associated with (administrative) expulsion. These costs include especially costs of accommodation of the foreigner in a detention centre and airfare. In order to recover these costs there has to be decision issued and delivered to the respective foreigner. The problem we face is that the exact amount the foreigner is obliged to pay is known just before his/her expulsion. Therefore there is not a sufficient time to issue a decision and to deliver it immediately to a foreigner (also due to many obligatory procedural steps). Therefore we issue that decision earlier but for only part of the period of detention for which the amount of costs is known. Second problem is the delivery of the decision. In case we would issue a final decision on all costs it would be necessary to deliver it to the foreigner abroad. However we consider this procedure as non-efficient and very expensive. 1 of 8

2 Third problem the sanctions directive (2009/52/EC) enables us to recover these costs from the employer who employed illegally staying foreigner. However, this does not work in practice. 1. How does your national system of deciding on the obligation to pay costs associated with (administrative) expulsion works? - Is it necessary to issue a decision on the obligation to pay costs? - Do you deliver this decision to a foreigner before he/she is expelled? - If yes, do you know the exact amount of the costs sufficiently in advance or, if not, how do you solve this situation? 2. Do you deliver decisions on the obligation to pay costs associated with (administrative) expulsion to a foreigner abroad? 3. Do you regularly issue this decision to the employers who employed illegally staying foreigners? How do you get to know about the fact the respective employer employed illegally staying foreigners? 4. Please describe your recovery system, is it efficient in practice? We will very much appreciate receiving your responses by June 11, Responses Wider Dissemination? Austria No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further. Czech Republic No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further. Estonia Yes 1. According to Estonian legislation, it is possible to collect costs incurred from a foreigner or persons who have obligations of a sponsor. In such cases Police and Border Guard Board issues the claim to pay costs. - Yes, it is necessary to issue a decision on the obligation to pay costs. - Yes, the claim to pay costs is issued directly before expulsion. - Cost rates are established by a regulation of the Minister of the Interior (detention center costs 12, 78 Euro/ per day, transport 0,06 Euro/per km, etc.) 2. No. 2 of 8

3 3. No. 4. Police and Border Guard Board shall issue the foreigner or his/her sponsor the claim to pay costs. If during one month costs are not paid, Police and Border Guard Board shall issue a precept to pay costs to sponsor and after 90 days it is possible to address the claim for compulsory execution. The main problem is that in most cases there are no sponsors and if foreigner is expelled, it is impossible to reclaim incurred costs. Finland Yes 1. Finland does not require foreign nationals to pay costs of removing them from the country. 2. No (see above). 3. The decision on removing an alien from the country is not issued to the employer. The proposal for implementing the employer sanctions directive is not yet submitted. 4. Recovery systems are not in practice. Hungary Yes 1. According to the Act II of 2007 on the Admission and Right of Residence of Third-Country National the costs associated with expulsion shall be borne by the person expelled or if the necessary resources are lacking by his/her host. In order to secure the costs of departure, the competent authority may seize the travel ticket if the third-country national in question has one, or if sufficient resources cannot be ensured otherwise may confiscate his money in the amount as is required to purchase the ticket and to obtain a travel document; these actions may not be contested. Because these costs are really hard to be planned, the ordered custody of the immigration process the cost of maintenance and care, as well as the intentional injury may be charged to the person. In order to ensure the cost of travel - within reasonable limits - as high as possible amount can be allocated. In practice, however, so small percentage of illegal residents have adequate means of subsistence. The authority makes a decision termination of the detention about the cost of maintenance and care, as well as the intentional injury. The obligation must be fulfilled within three months, after the deadline, the rules of the implementation shall apply against the invitation, the employer as well as the research organization, but this measure should not be used against the third-country national. The immigration authority shall order separate entry and residence prohibition of the third-country national who has failed to repay any refundable financial aid received from the State of Hungary. 2. The decision is sent in all cases to the provided foreign address, which was given by the person. In general it is not efficient. 3. According to the Hungarian national law the costs shall be repaid by the expelled person, by the host if the person affected was invited, by the employer, by the research organization, if the relevant third-country national do not have sufficient resources. The complete transposition of the so-called "Sanctions Directive is under way. 4. The most successful way is, when the expulsion is ordered, in the same time the person has enough resources, which can be reserved by 3 of 8

4 the competent authority. In the case if the person has less resources; even a fraction of the costs can be reserved. In practice, the cost of removal might be recovered, if the scope of the prohibition of entry and residence expires and after this, the person tries to enter the Hungarian territory but he/she cannot, because of the extant debt. In this case, these amounts are usually reimbursed. Italy Yes In Italy there is no obligation for delivering and issuing payments of the costs associated to administrative expulsions to a foreign citizen. In fact, these are always covered by the government according to a specific budget item. Latvia Yes 1. The decision on recovery of expulsion costs takes the State Border Guard official. The costs consist of: accommodation in the aliens accommodation centre, translator services, costs for medical care, escorting, transportation, identification, obtaining of travel documents, visas. The expulsion costs can be recovered from an alien, inviter or carrier. The decision on recovery of expulsion costs is taken after the expulsion of alien is carried out and includes all the costs. 2. The decision on recovery of expulsion costs is send to the person by post (in case if decision is taken with regard to alien it is send to him/her abroad by post). 3. After the Amendments to the Immigration law will be adopted (June of 2011) it will be possible to recover costs also from employer. The State Border Guard gets information on the employer, who employed illegally staying alien when performing immigration control inside the country or carrying checks at the illegal immigrant s workplace. 4. The system is effective only with regard to persons, who are residents (inviters) of the Republic of Latvia. The recovery of expulsion costs from abroad is not effective and is rather expensive. The procedure of recovery of expulsion costs will be changed. The new procedure will provide the recovering of the expulsion costs by bailiff. Lithuania Yes 1. According to national legislation an alien is expelled from the Republic of Lithuania or returned to the country of origin or foreign country to which he has the right to depart: 1) at his own expense; 2) at the expense of the natural or legal persons who invited the alien to the Republic of Lithuania; 3) at the expense of the carriers in cases established by the laws of the Republic of Lithuania. In the absence of resources specified above an alien shall be expelled from the Republic of Lithuania or returned at the expense of the State. In practice, the aliens return on their own costs after the obligation to leave is issued. If the alien is expelled the costs are covered by the State. The costs can be recovered from the natural or legal persons who invited the alien to the Republic of Lithuania but such a recovery was implemented only in very few cases. (A third country national applying for visa must submit a legally approved invitation letter issued by natural or regal person in Lithuania). - No, Lithuania does not issue decisions to an expelled alien on the obligation to pay costs; - No. Not applicable. 4 of 8

5 - Not applicable. 2. No. 3. No. However, the draft Law includes a provision on the responsibility of the employer to cover costs of illegally employed aliens. The Law is still in the pipeline. Luxembourg Yes 1. According to the provisions of article 126 of the Law of Free Movement of Persons and Immigration, the repatriation costs have to be beard by the foreigner that is being expelled. The law does not contemplate taking a decision in that sense and the Ministry of Foreign Affairs does not deliver specific decision in relation with this topic. However, due to the widespread lack of funds the cost of repatriation is normally paid by the government. 2. No. The authorities do not deliver specific decisions in relation with this topic. 3. According to article 144 of the Law of Free Movement of Persons and Immigration the employer that hires irregular migrants can be sanctioned with a fine from 251 to euros. Nevertheless, to the best of our knowledge there has not been until now a single case where this sanction has been applied. The only way of knowing these type of situations are: 1) the Labour inspectors received a direct denunciation or 2) the illegal alien is reported to the social security system by the employer and the inspectors of this institution reacts in consequence. 4. As we mentioned, due to the lack of funds the costs of repatriation are normally assumed by the State. Malta Yes 1. -Article 14 (6) imposes that an executive warrant is issued. - This legal provision is not normal practice but should the occasion be met, all efforts will be made to execute the warrant before the departure of the foreigner. - For the warrant to be issued we have to file an application to the Immigration Appeals Board and therefore all expenses have to be clearly known. 2. We have no experience on this. 3. No. 4. In practice, the foreigner who will be subject of a removal order will be in detention. Therefore in most cases it will be in his own interest to leave as early as possible. So he will do his utmost to acquire funds for his air ticket. If he would have been illegally employed, 5 of 8

6 the police inform the employer to pay any dues that are still pending towards the foreigner. Should the police have to fork out the funds for the foreigner s return ticket, this is recorded in the person s personal file data and will be taken into consideration should a future request for re-entry be submitted. Netherlands Yes 1. There is not a lot of experience with obligation of a foreigner/alien to pay costs. Although the Netherlands have a policy concerning this matter (in the Aliens Implementation Guidelines 2000), we have never put it into practice. We focus on the liability of a carrier for paying the costs of e.g. accommodation and deportation incurred by the Dutch State in relation to the refused alien. An invoice of the costs is sent to the carrier. - In case of 'the obligation of an alien to pay costs': In the current situation it would be necessary to have permission (signature) of the alien in order to send him, after returning him to a place outside the Netherlands, an invoice of the costs that have been made by the Dutch government. If an alien does not want to give that permission, a civil juridical procedure can be followed by the Dutch state. If an alien gives permission on forehand, an invoice is sent to the alien abroad. This invoice could be seen as a 'decision'. But as mentioned before, we do not have any practical experience with this procedure. - In case of 'the obligation of an alien to pay costs no such decision would be delivered before he is expelled. 2. In theory yes (in practice no) 3. In practice no. However, there are plans to act on this on a regular basis. 4. As mentioned before, we mainly focus on the liability of a carrier for paying the costs. The actual costs for which the carrier is liable are put in the price-list. If an alien who is refused admission applies for asylum, the carrier s liability for paying the costs during the period the asylum application procedure is pending, will be suspended. Not until the alien s notification of obligatory departure has expired and the border control official has instructed the carrier to convey the alien to a place outside the Netherlands, shall the carrier be charged. One government party (the Immigration and Naturalisation Service) collects all the needed information in order to make a resumé of the costs that have been made for one alien. An invoice, together with the resumé, is being sent to the carrier. The carrier needs to pay within 30 days. The carrier has the ability to protest this decision. Poland Yes 1. Generally, the expulsion costs should be covered by foreigners. However, there are some cases when the costs shall be born by the host (who had previously committed him- or herself to cover respective costs) or by the employer (if illegal employment was the reason of expulsion). The Voivode (governmental authority in the region) issues decision on expulsion and sets related costs and person obliged to cover it (which is subject to a separate decision, not a part of decision on expulsion). The decisions are delivered to a foreigner before the expulsion. If the real costs of expulsion are different than estimated, the Voivode may change it afterwards by a separate decision. 6 of 8

7 2. No (the costs are estimated before the expulsion). 3. There is legal possibility to make employer pay the costs of expulsion (see answer to question 1). However, it has not been often used in practice so far. The bodies entitled to scrutinise the legality of employment of foreigners are the National Labour Inspectorate and the Border Guard. 4. The execution of decision on obligation to cover the costs of expulsion is problematic, especially in case the foreigner is already abroad. However, there is an additional incentive which is meant to encourage foreigners to cover the costs of their expulsion. Namely, if the foreigner covers the costs of expulsion, the ban on entry to Poland lasts 3 years, instead of 5, which is applicable otherwise. Portugal No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further. Slovak Republic Yes 1. The Slovak Republic does not issue such a decision. An alien reimburses the costs associated with administrative expulsion from his/her own financial means, or from the sum deposited at a diplomatic mission. If it is not possible, the costs of administrative expulsion are reimbursed by the person who employed the alien without authorisation, the person which mediated an unauthorised employment to the alien, the person which undertook to do so in an authenticated invitation, or a carrier which failed to fulfil its lawful obligations. - Not applicable - Not applicable 2. No. 3. No. Controls of illegal employment of foreigners are carried out by Labour Inspectorates, Central Office of Labour, Social Affairs and Family, Local Offices of Labour, Social Affairs and Family and Police Corps. Controls are carried out individually or in cooperation with other authorities. Due to the transposition of the Sanctions Directive the control of the illegal employment will be in the competence of Labour Inspectorates and Police Corps from 20 July If it is not possible to reimburse the costs of administrative expulsion from alien s own financial means, or from the sum deposited at a diplomatic mission or in a different way, they are reimbursed by the State through the Ministry of Interior. Sweden Yes This question is not applicable to Sweden since in Sweden the government agency responsible for the expulsion is arranging, booking and paying for the travel costs. United Kingdom Yes 1. The United Kingdom does not recover administrative costs for removal from individual returnees and there is currently no provision for the recovery of expulsion costs in UK domestic legislation. 2. No (see answer to question 1) 7 of 8

8 3. No (see answer to question 1) 4. No (see answer to question 1) ************************ 8 of 8