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Doc. 8986

27 February 2001

Non-expulsion of long-term immigrants

Report

Committee on Migration, Refugees and Demography

Rapporteur: Mrs Manuela Aguiar, Portugal, Group of the European People's Party

Summary

Many long-term immigrants have not taken the nationality of the state in which they live. They share the culture, language and everyday life of its nationals and frequently have very tenuous links with their country of origin. This is particularly the case for second-generation long-term immigrants, who have been educated and raised in the host country and yet remain liable to expulsion if convicted in criminal proceedings. This potential penalty is particularly discriminatory in that it has even more serious consequences for the individual and his or her family than a prison sentence. Use of expulsion impairs the integration of foreigners in the Council of Europe member states and reinforces the image of foreigners in our countries as "second-class citizens". A policy granting greater security of residence to long-term immigrants who have chosen to live for a long period in the host country is preferable to the use of expulsion, which is inhuman and senseless.

The Assembly invites the governments of member states to recognise the security of residence of long-term migrants once they have been resident for five years, to remedy the practice of expulsion and to apply ordinary-law penalties to long-term immigrants and nationals, without discrimination. The Assembly also recommends that a protocol to the European Convention on Human Rights be drafted for this purpose.

I.       Draft recommendation

1.       Immigrants who, while retaining their original nationality, have settled in a host country which is a member of the Council of Europe in order to live there for a considerable period of time, may, in accordance with the law in force, be expelled from that country for reasons of public order, and in particular after they have been convicted or even simply accused in criminal proceedings.

2.       These people, known as "long-term" immigrants, most of whom were born or brought up in their host country, have integrated into their host society and are no longer humanly or sociologically foreigners. This is particularly the case of second-generation immigrants, for whom their parents' country is often unknown territory.

3.       The application of expulsion measures against them seems both disproportionate and discriminatory: disproportionate because it has lifelong consequences for the person concerned, often entailing separation from his/her family and enforced uprooting from his/her environment; and discriminatory because the state cannot use this procedure against its own nationals who have committed the same breach of the law.

4.       The Assembly takes the view that the lack of security of residence represented by the mere prospect of expulsion weakens the process of the integration into society of aliens and their communities, and might well give rise to a suspicion of foreigners, whether or not they face expulsion.

5.       The Assembly notes with concern that legal rules on expulsion are being misused and regrets the fact that the European Court of Human Rights has not adopted any clear stance on the expulsion of long-term immigrants. This deprives them of the certainty of the law to which they are entitled in a law-based state.

6.       The Assembly takes the view that an irreversible order to leave a country's territory is a penalty which ought no longer to exist for “long-term immigrants” within the meaning of Article 1 a) of Recommendation (2000) 15 of the Committee of Ministers.

7.       Under no circumstances should expulsion be applied to children born or brought up in the host country or to under-age children.

8.       Those persons who were lawful residents in a country, prior to establishment or restoration of the independence of that country, should enjoy at least the same level of protection as long-term immigrants and, in particular, under no circumstances be expelled.

9.       The Assembly finds it totally unacceptable that long-term immigrants who have been sentenced to expulsion are held in prison while they await their expulsion.

10.       The Assembly considers that expulsion may be applied only in highly exceptional cases, and when it has been proven, with due regard to the presumption of innocence, that the person concerned represents a real danger to the state.

11.       Taking account of Recommendation (2000) 15 of the Committee of Ministers concerning the security of residence of long-term migrants, the Assembly recommends that the Committee of Ministers:

i.       take steps to formulate a protocol to the European Convention on Human Rights concerning the protection of long-term migrants against expulsion;

ii.       invite the governments of member states:

a. to recognise that the expulsion of a long-term immigrant is a disproportionate and discriminatory sanction;

b. to recognise that the threat of expulsion constitutes an obstacle to the integration of long-term immigrants;

c. to undertake to ensure that the ordinary-law procedures and penalties applied to nationals are also applicable to long-term immigrants who have committed the same offence;

d. to recognise that expelling persons on public order grounds, where their guilt has not been legally established, is contrary to the principle of presumption of innocence;

e. to accept that expelling persons after they have served a prison sentence is a double punishment;

f. to ensure that offences committed by long-term migrants which constitute a threat to or violation of public order are defined and penalised under criminal law in the same way as for nationals;

g. to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting state security of which they have been found guilty;

h. to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances;

i. to ensure that persons facing expulsion can secure detailed examination of their humanitarian situation in order to highlight the consequences of their possible expulsion for themselves and their families and, if appropriate, to adopt alternative measures.

      j. to take the necessary steps to grant persons subject to expulsion the following procedural safeguards:

      – the right to a judge;–

      – the right to a trial in the presence of all parties;–

      – the right to assistance by counsel;–

II.       Draft order

1.       The penalty of expulsion, which may be combined with a prison sentence, is also applicable to immigrants who have been living for some considerable time in a Council of Europe member state but who have no lawful permit of residence. The Assembly notes that the human consequences of expulsion for such persons are no different from those affecting persons legally resident in the host country. In particular it considers that such sanctions imposed on unlawfully resident long-term immigrants for violations of legislation on foreigners are at least as disproportionate as those imposed on lawfully resident immigrants who have committed an ordinary-law offence.

2.       Moreover, the Assembly also regrets the dearth of information on expulsion practice in the countries of central and eastern Europe, particularly in connection with residents who became foreigners in the wake of the dismantling of certain states.

3.       Consequently, the Assembly instructs its Committee on Migration, Refugees and Demography:

III.       Explanatory memorandum by Mrs Aguiar

1.       Introduction

1.       Immigrants residing in a host country without having taken the nationality of that country may, in accordance with the legal provisions in force in the member States of the Council of Europe, be expelled to the country of which they are nationals even if they are in lawful residence and have strong ties with their host country. They are not even safe from expulsion in the European Union, even if they hold Community citizen status1

2.       The Rapporteur notes that many immigrants are living in our countries as “virtual nationals”. They are integrated into the host society by dint of long-standing residence and the emotional and professional links they have forged. The people we refer to as “second-generation immigrants” were born and grew up in the host country. They share its education, culture and language and frequently have only tenuous, or even non-existent links with their family’s country of origin. Such persons are, humanly and sociologically speaking, no longer foreigners.

3.       In legal terms, however, they are still aliens. Even after decades of residence, their alien status does not entitle them to stay in the country free from the fear of expulsion. Unlike nationals, foreigners who disturb public order are sanctioned with expulsion. The Rapporteur might point out that a national who disturbs public order is penalised under criminal law. Expulsion is a serious penalty which automatically revokes the right of residence and requires the person in question to leave the national territory immediately. It is often combined with an ordinary-law criminal penalty, in which cases it must be considered as “double punishment”, which is not only discriminatory but also disproportionate. It tears individuals out of their normal living environment and leaves them homeless and alone. To this extent it constitutes genuine “banishment” for such persons.

2.       Target group: long-term immigrants

4.       This report focuses on foreigners residing lawfully and durably in the host state. Foreigners applying for permanent, indefinite or fairly long-term residence (ten years or so) in the territory of member States of the Council of Europe are granted permits if they fulfil certain conditions. The grant of such authorisation means that the states in question no longer consider these aliens as mere short-term visitors. The main precondition is prior residence of variable length, which ranges from 3 to 5 years in most states. Such further criteria as knowledge of the national language and steady employment serve to substantiate the foreigner’s wish to integrate into the host society.

5.       In this connection the Rapporteur would accept the definition of “long-term migrants” set out by the Committee of Ministers in its Recommendation (2000) 15 on security of residence for such immigrants, since it tallies with the approach adopted by member States. Such foreigners (with the exception of students) have resided lawfully and habitually for at least five years in the national territory, have been authorised to reside in such territory permanently or for a period of at least five years, or have been granted a five-year residence permit for the purposes of family reunification.

3.       Functions and grounds of expulsion

6.       Legislation in member States of the Council of Europe provide for various measures for removing foreigners from their territory. These measures are referred to in this report under the generic term of “expulsion”, whatever the specific legal meaning of this concept in the different national legal systems.

7.        Expulsion is a public-order measure taken by the administrative authorities in order to prevent any future disturbance of law and order by the foreigner in the host society. The principle is that it penalises misconduct by a guest, who has violated the rules of hospitality. Some countries also attribute a repressive function to expulsion. France, Greece, the United Kingdom, Spain, Portugal and Croatia see expulsion as an ancillary criminal penalty that may be imposed on top of an ordinary-law sanction, which usually means a prison sentence.

8.       Notwithstanding the diversity of national legal systems and the complexity of some of them, the grounds used for expulsion may be broken down into three categories: ordinary-law offences, violations of public order and national security, and non-compliance with legislation on foreigners.

9.       Legislation in many countries stipulates that specified ordinary-law offences are sufficient grounds for expulsion. Broadly speaking, expulsion depends on the severity of the sentence imposed on the foreigner. An unsuspended prison term of 3 months in Greece, one year in France and Spain, two years in Germany and three years in Belgium and Norway can lead to expulsion. Switzerland and Croatia even lay down more generally that any prison sentence of whatever duration can give rise to expulsion. Other countries make specified offences liable to the penalty of expulsion, eg prostitution or the use of and trafficking in narcotics in Germany. In France expulsion can be ordered for no less than 60 criminal offences.

10.       Portugal is currently overhauling its system for expelling foreigners. The relevant draft legislation, which has already been approved by the Portuguese Parliament (pending publication), strictly limits the legal scope for expelling long-term residents. The main innovation of this text (Article 101) is its definition of categories of persons enjoying absolute security of residence (“non-expellable” persons):

–       immigrants who were born in Portuguese territory or have lived in the country since the age of 10;

–       citizens with under-age children, provided they are responsible for the latter’s maintenance and upbringing until the time of enforcement of sentence.

11.       Other permanently resident foreign citizens can, in principle, only be expelled if their conduct represents a sufficiently serious threat to public order or national security. The expulsion procedure can only be initiated in respect of such persons, as for any resident of the country, on the basis of a criminal conviction comprising a prison sentence of over twelve months. Judges can take account of such factors as the nature of the crime, the offender’s character and whether he/she has committed similar previous offences, the level of integration into the host society and the length of residence. It should, however, be noted that none of these guarantees apply to foreigners not holding legal resident status.

12.       Where national legislation does not expressly provide that criminal conviction may lead to expulsion, the competent authorities have recourse to the concept of infringing, endangering or threatening public order and national security.

13.       With the notable exceptions of Croatia and Denmark, most states rely on ordinary law to enforce expulsion. The different national texts stipulate different degrees of seriousness and specificity for such ordinary-law offences. In Iceland and the United Kingdom it is sufficient for the foreigner’s presence to be undesirable. Poland has attempted to make these grounds more explicit: the relevant legislation2 mentions participation in activities threatening national independence, territorial integrity, the political regime, the national defence system, terrorism, and trafficking in arms or drugs, but also any other ground involving a threat to state security or the need to protect law and order. Despite these efforts at clarification and terminological definition, the concepts remain vague and “catch-all”, which leaves them open to arbitrary appraisal.

14.       In practice, such measures are most often taken on the basis of criminal convictions. In some states which implement both judicial and administrative expulsion, therefore, the administrative authorities can actually take the place of the judge. Greek legislation lays down that a senior police officer can expel any foreigner sentenced to three months’ imprisonment even in the absence of an explicit judicial decision to that effect. In the United Kingdom and Sweden, on the other hand, a court order is needed for expulsion in cases of criminal convictions.

15.       However, persons may also be sentenced to expulsion without any criminal penalties or conviction of guilt if there is “good reason to believe” that the foreigner’s presence in the territory of the host state is a threat to public order, that is to say on the sole basis of evidence, which may or may not be reliable, relating to the person’s character or conduct. Discretionary appraisal by the competent authority in this area is highly subjective and in no way guarantees certainty of the law for foreigners. With the development of the concept of “alien criminality” in European societies there is a major risk of persons being convicted on the basis of racial type. In fact, Dutch and Spanish courts have decided that in order to protect the presumption of innocence expulsions can only be ordered on the basis of a definitive criminal conviction.

16.       The Rapporteur would agree that protective clauses are needed, but feel that they should be applied exclusively in exceptional cases involving defence of the democratic system based on respect for the rule of law and the fundamental freedoms, as specified in German legislation.

17.       Moreover, most Council of Europe member States sanction certain violations of the law governing aliens, including non-compliance with the criteria for issuing residence permits or exceeding the permit expiry date. In such cases the foreigner in question may be imprisoned and then expelled. In France in 1997 and 1998 75% of all expulsions from French territory were based on the sole offence of infringing the law relating to aliens3. Although such offences are not the subject of this report, which concentrates on foreigners residing lawfully in the host state, some of the persons affected have lived for a long time and built up their lives in their country of residence. The Rapporteur would be keen to avoid any paradoxical situation whereby such individuals, whose only crime is not to have the requisite administrative documents, are convicted and expelled while hardened criminals are safe from expulsion because they hold a valid residence permit. We must consider as a matter of urgency the situation of long-term immigrants who are in breach of legislation on aliens.

4.       Persons protected against expulsion

18.       We should also consider two non-European countries holding observer status with the Council of Europe, namely Canada and the United States of America, in which a large number of nationals of member countries of our Organisation have been served expulsion orders. Canadian legislation takes account of personal data – integration, family situation, previous offences, length of residence – and is therefore not so different from the legal systems we have just mentioned in Europe. The United States, on the other hand, has a system that must be considered incompatible with the requisite minimum standards in a state respecting the rules of justice and foreigners’ human rights. Two aspects of US legislation merit closer scrutiny:

a.       the automatic service of an expulsion order on any alien sentenced to a prison term of over one year (even in the case of a “suspended sentence”);

b.       the retrospective effect of the 1995 Act governing the expulsion of foreigners having been convicted (often under “suspended sentences”) at a previous point in time.

19.       Many voices have been raised in the US against this state of affairs (including Senators Moynihan and Kennedy), but they have never managed to secure an amendment to this legislation, which was imposed at a time when xenophobic tensions combined with the desire to combat clandestine immigration to produce a text which infringes the rights of foreigners settled lawfully in American territory, long-term immigrants and even aliens raised in the country since childhood. We heard only recently that the latest attempt to amend this Act has also been defeated.

20.       The figures on expulsions (1997) show that of the five continents, North American countries adjacent to the US have been worst affected: 43 262 expulsions out of a total 47 558. Europe is nevertheless in third place, just after South America, with 1 616 citizens expelled (headed by the United Kingdom with 344, then the former Soviet Union with 159, Poland with 147, Italy with 119 and Germany with 109). The list also includes Romania, former Yugoslavia, France, Portugal and Spain.

21.       Very few countries absolutely prohibit the expulsion of specified individuals or groups. However, as we have seen, this is the case of the new legislation adopted by the Portuguese Parliament for children born or raised in Portugal since the age of ten and the parents of under-age children. In France, Austria, the Netherlands, Sweden and Norway, for instance, under-age children and second-generation immigrants (ie foreigners who were born in the country or arrived there as small children and have resided ever since) are protected against expulsion. Moreover, immigrants who have resided in the Netherlands for over 20 years cannot be expelled.

22.       Most legal systems provide relative protection for certain categories of aliens, to the effect that they can only be expelled on particularly serious grounds involving national security or public order. This type of protection is particularly aimed at aliens lawfully resident either permanently or for a lengthy period of time, usually 10 years, and their spouses or relatives. In Iceland aliens who have been convicted of a crime are safe from expulsion if they have been in residence for at least five years. It is unfortunate that legislation in central and East European countries does not specifically provide for this kind of protection.

23.       Furthermore, under international law a person may not be expelled if he/she risks being placed in harsher conditions, and especially if the country to which he/she is to be expelled practises torture or the death penalty.

24.       Lastly, all foreigners are protected against expulsion by the principle of legal personality and proportionality, based on Article 8 of the European Convention on Human Rights relating to the right to respect for private and family life. Before deciding to issue an expulsion order the authorities are generally required by law to take account of all the known factors affecting the person concerned, including, in the United Kingdom for example, "strength of connection with the UK, (…) personal history including character, (…) domestic circumstances (and) compassionate circumstances"4. Regard is also had, in the case of criminal convictions, to the seriousness of the offence committed or of the penalty imposed. It is also important to consider the consequences of expulsion for other family members, especially children, because this penalty indirectly affects the expellee’s whole family circle. There have allegedly been almost 100 000 indirect victims of “double punishment” in France5. On the other hand, the criterion of whether or not the immigrant maintains real links with his/her country of origin, which is applied in Belgium, should be abolished, because dual culture is an asset, not an obstacle to integration.

25.       The Rapporteur is concerned that certain special provisions appear incompatible with these principles. The existence in Germany and Austria, for instance, of cases of mandatory expulsion precludes taking account of the personal consequences of such a measure. The system used in the United Kingdom whereby the expellee’s under-age children and spouse are also expelled is an unfortunate misinterpretation of the right to family reunification.

5.       Procedural safeguards in cases of expulsion

26.       Article 13 of the International Covenant on Civil and Political Rights6 and Article 1 of Protocol No. 7 to the European Convention on Human Rights provide that aliens lawfully resident in the territory of a state must be allowed to submit reasons against their expulsion and to have the case reviewed by the competent authority or by a person or persons specially designated by that authority, securing representation for this purpose, unless there are overriding reasons of national security or public order against granting such facilities.

27.       Such safeguards are obviously best guaranteed where a judicial or administrative court is responsible for expulsion, as such a body can organise inter partes proceedings and thus minimise the risk of arbitrary decisions. Good examples of this approach are to be found in Croatia, Estonia, Lithuania and Denmark, which provide for the systematic involvement of a judge.

28.       In other states, where administrative authorities are responsible for expulsion, the problem of procedural safeguards arises. In most cases the local administrative or police authorities are responsible, although in some countries the top state authorities take the decision. Some countries, eg Belgium, France, Luxembourg and the Netherlands, have set up consultative bodies specialising in immigration to assess each individual case and hear the persons facing expulsion, who can secure the assistance of counsel in proceedings before them. These consultative bodies are made up of judges and/or immigration officers. Even though their opinion is not binding on the competent authorities, the latter must take account of it in reaching its final decision, which prevents summary expulsion. Better still, Sweden has assigned responsibility for cases of expulsion to specialised independent administrative authorities.

29.       The principle of the right of appeal against administrative decisions to expel foreigners has been widely accepted. Such appeals are generally filed with the courts, but in some cases, as in Greece, they are merely submitted to the higher administrative authority. Nevertheless, some states still restrict access to appeal procedures. In the United Kingdom, for instance, the right of appeal is limited, with a number of exceptions, in the case of aliens who have been resident for less than 7 years and only hold a restricted residence permit.

30.       The effectiveness of the right of appeal mainly depends on its suspensive effect. However, an appeal does not always suspend enforcement of the expulsion. In France, Belgium, the Netherlands, Spain and Estonia the person concerned can apply to the administrative court for a stay of execution, but such applications are not systematically granted. In such countries as the United Kingdom, Germany and Norway, legislation provides for the ex officio suspensive effect of an appeal, which in some cases includes applications to the European Court of Human Rights (Austria and Sweden). However, even in these cases such effect may be refused in the interests of public order or national security.

6.       Enforcement of expulsion orders

31.       In a number of countries alternative measures are implemented to prevent the cost of expulsion and its human and emotional consequences. Examples of such measures are issuing official warnings, suspending the expulsion order, replacing a permanent residence permit with a temporary one and issuing a compulsory residence order for a specified area. It would be useful to extend the use of such alternative measures.

32.       Conversely, there is an urgent need to abolish the practice of expelling foreigners even before they have completed their prison terms, as is permissible under Greek and, more recently, Swedish legislation and as exists de facto in a number of states as the various remissions of sentence and conditional releases work their way through the system.

7.       Expulsion, the European Convention on Human Rights and the International Covenant on Civil and Political Rights

33.       Although the right not to be expelled is not included as such among the rights and freedoms mentioned in the European Convention on Human Rights (ECHR), it does appear in the United Nations Covenant on Civil and Political Rights, Article 12 of which provides that “No one shall be arbitrarily deprived of the right to enter his own country”.

34.       Nevertheless, the European Court of Human Rights has developed case-law on protecting integrated foreigners against expulsion on the basis of Article 8, which secures the right to respect for private and family life. The Court’s task is to determine whether the expulsion struck a proper balance between the interests at stake, namely, on the one hand, the applicant’s right to respect for his private and family life and, on the other, the protection of public order and prevention of criminal offences7. For some time the Court seemed to be serving the interests of the persons under threat of expulsion, but more recently its case-law has inclined toward severity. Even though the Court is often divided in its voting and every decision on this matter gives rise to dissenting opinions, its findings of violations of Article 8 are becoming rarer, even in cases involving second-generation immigrants. The Court is producing inconsistent judgments in which similar facts give rise to different conclusions. According to one dissenting opinion, this case-by-case approach provides neither the national authorities nor the potential victims of future expulsions with the certainty and clarity to which they are entitled.

35.       In view of the Court’s hesitations, it would be advisable to complement the Convention with a clarification of the extent to which integrated or long-term immigrants constitute a separate category of aliens to be specially protected against expulsion.

36.       We might base such new provisions on the United Nations Covenant. According to the Human Rights Committee “the scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”8 The Committee had initially adhered to a fairly restrictive interpretation of this concept, for instance claiming that the provision was not applicable to a British national who had arrived in Canada at the age of 7 and lived there for 30 years9, using arguments which were rightly criticised at the time. This is apparently why the Committee has now adopted a broader interpretation of the expression “his own country”, extending it to cover certain “categories of long-term residents” and thus take account of the fact that in some cases other factors can entail the creation of strong, lasting ties between a given individual and a given country.

8.       Expulsion practice

37.       According to the European Committee on Migration (CDMG) report on the "Security of residence of long-term migrants: a comparative study of law and practice in European countries"10, the number of expulsions in the countries studied11 compared with the number of aliens living there is minimal, and indeed decreasing in countries with large foreign populations. Expulsions nevertheless still take place in all the countries, and very large numbers of them in some, particularly the immigration countries. According to the French Ministry of the Interior, for instance, 9 972 expulsions from French territory were ordered by the courts in 1997, while Le Monde diplomatique gives the figure as 12 00012. The newspaper reports that between 17 000 and 20 000 people are now expelled each year.

38.       There is also a discrepancy between law and practice. Protection legislation sometimes goes by the board. The proportionality principle deriving from Article 8 of the European Convention on Human Rights, which involves assessing the personal situation of the individual to be expelled, is certainly not applied in cases where judges more or less systematically order expulsions. It is an oversimplification to consider, as allegedly happens in Swedish courts13, for example, that all offenders are by definition unfit to be parents or spouses. A 1998 statistical survey of 500 persons expelled from France revealed that a quarter of them had a partner in France, that another quarter had children in France, most of them holding French nationality, and that their average length of residence in France was nine years, all categories which French law theoretically protects from expulsion14. In Germany, there are more and more cases of expulsions “inadvertently” executed while appeal proceedings are still pending15.

39.       Major disparities are sometimes noted in the implementation of expulsion within one and the same state. In both France and Germany different regions have developed different interpretations of the overly complex legislation, depending on the political affiliation of the competent authority. This is an indication of the lack of clarity of the legal texts and their inability to guarantee certainty of the law for immigrants.

40.       Expulsion practice takes very low priority in central and East European countries, mainly, according to the CDMG study, because of the financial cost involved. However, the Rapporteur must admit that she has little information on this matter. Some countries, notably Estonia, have a large long-term resident population who became foreigners after certain states were dismantled, and include a number of stateless persons. After this dismantling process these same countries experienced immigration flows based on ethnic criteria. These special features merit in-depth study of the issue of integration and security of residence of such foreigners.

9.       Reaction in receiving countries

41.       The return of hardened criminals often contributes to the escalation of gang activities, violence and drug-trafficking in the receiving countries, which may have criminal justice systems ill-equipped to deal with such problems. Lacking information about the individuals themselves, these countries are concerned about the obstacles they have to face in reintegrating persons who have been resident in another country for a long period of time, as well as about the fact that the criminals "come from another country". In the words of a recent study, "Many deportees return as strangers to their country of origin. A lack of advance notice and the absence of any programs to monitor recently-returned offenders impedes receiving countries from assisting with their reintegration. The result, according to many foreign diplomats, is a high rate of recidivism that contributes to sharply rising crime rates. These problems implicate U.S. interests and raise concerns for the international community”16.

10.       Expulsion: an inappropriate response to domestic fears

42.       In the light of a growing fear that foreigners have a greater tendency to become criminals than nationals, there is a danger that domestic concern about “alien criminality” results in a wish for foreign criminals to be systematically and immediately expelled, without any consideration being given to the human context. Indeed, public pressure is mounting on political parties to be more clearly and radically committed to the expulsion of immigrants.

43.       The number of those who generally consider the role of foreigners in the country as negative is increasing. The Swiss research institute DemoSCOPE17 concluded that, during the 1995-98 period, the number considering their presence ”very negative” doubled, whereas the number taking a “sympathetic” view decreased by 25%. The German concept of “Ausländerkriminalität18” clearly reflects what has, over the last decade, become a major criminological and social problem.

44.       This issue plays a central role in public and political discussions, but existing statistics showing the percentage of resident foreigners engaging in criminal activities, mainly issued by the police, cannot be the only reliable indicators. Existing data are mainly based on presumed and reported crime rather than on offences committed19, and it is likely that immigrants are statistically over-represented in comparison to the population as a whole.

45.       In general, it is nearly impossible to obtain accurate figures on the relation between immigration and crime, if only because illegal immigration makes it impossible to know the exact number of foreigners in a given country. In addition, countries have different ways of obtaining these data. Another obstacle to the obtaining of reliable data is that a large number of crimes are committed by persons unknown. In Italy in 1993, for instance, 83.3 per cent of crimes were committed by persons unknown20.

46.       The social and human dimensions, which should be taken into account in a more heterogeneous approach to the issue, tend to disappear behind the polemics which these figures provoke. The criminal act is increasingly defined as an ethnic problem, instead of being considered from the social and legal point of view.

47.       The most high-profile type of alien criminality involves second-generation immigrants, “inner-city youngsters”, who often live in difficult social environments giving rise to feelings of discrimination and exclusion. They react to this through various forms of violence, including drug abuse. Some are expelled from the country for forgery as a warning to others. Brandishing the weapon of expulsion as a threat can only exacerbate their feeling of being discriminated against and encourage delinquent behaviour. People whom we ought to be integrating are pushed into ghettoes, where they are unfairly treated, and when some of them turn out badly we throw them out21.

48.       The Rapporteur should like to discuss in particular the matter of expulsions on the grounds of use of or trafficking in narcotic drugs. Expulsion would appear to be virtually automatic when a foreigner is found in possession of drugs. The European Court of Human Rights considers that the scourge of drugs inherently justifies such an extreme measure, in view of the terrible toll it takes in the population at large, without taking account of the person’s ties with his/her host country. In the Baghli case the Court adopted a very severe stance on a second-generation immigrant who had been convicted of heroin trafficking when found in possession of about ten grams of the drug. This is to forget that foreign populations living in Europe are just as much the victims of this scourge as the national populations, not its propagators.

49.       Above all, expulsion does not tackle the problem of “alien criminality”, if there is such a thing. In the case of long-term immigrants, expulsion increases rather than reduces such crime. Expulsion tears long-term immigrants out of their normal living environment and leaves them homeless. Very many expellees clandestinely return to what they regard as their own country, which means the expulsion leads to insecurity and, in the final analysis, to administrative and social exclusion, which in turn prompts crime22 of a type which is sometimes more serious than the offences for which the person was in fact expelled.

50.       In such cases expulsion, or the threat of expulsion, actually creates the danger from which it is supposed to be protecting us and effectively blocks any effort at integration.

11.       Conclusions

51.       The expulsion of immigrants lawfully resident in the country where they were born or brought up remains a matter of serious concern.

52.       On the one hand, interpretation of the existing legal framework remains uncertain at State level so that its application is imbued with a fair amount of subjectivity. In addition, ECHR case-law is inconsistent and appears to be increasing in severity.

53.       On the other hand, expulsion from the country of residence is a disproportionate punishment and undoubtedly has irreversible repercussions on the individual and his/her family, as well as on the whole foreign community. The Rapporteur do not believe that a long-term immigrant’s nationality can be used as a criterion to justify such serious discrimination as the "double punishment" of imprisonment and expulsion. The latter punishment is to be condemned because the expellees' family, occupational, cultural and linguistic ties with their country of origin make them “virtual nationals”, and also because it is an obstacle to integration.

54.       A balance should be struck between, on the one hand, maintaining and protecting public order and, on the other, interfering in the private and family life and destiny of the immigrant who has broken the law. Expulsion orders should only be issued against such immigrants in very exceptional cases involving State security, with respect for the procedural rules guaranteeing their absolute necessity in a democratic society. In order to achieve such a situation the Rapporteur considers that states should draw on the rules they apply to their own nationals, particularly those governing criminal prosecutions.

Reporting committee: Committee on Migration, Refugees and Demography.

Reference to committee: Doc. 7601 and Reference No. 2111 of 7 November 1996.

Draft recommendation and draft order unanimously adopted by the committee on 23 February 2001.

Members of the committee: Mr Iwiński (Chairman), Mrs Vermot-Mangold (1st Vice-Chair), Mrs Bušić (2nd Vice-Chair), Mr Einarsson (3rd Vice-Chairman), Mrs Aguiar, MM. Akhvlediani, Aliev, Aliyev G., Amoruso (alternate: Mr Polenta), Mrs van Ardenne-van der Hoeven, Mr de Arístegui (alternate: Mrs Torrado), Mrs Arnold (alternate: Mr Soendergaard), Mr Begaj, Mrs Björnemalm, MM. Brancati, Branger, Brînzan, Mrs Burataeva, MM. Christodoulides, Cilevičs, Connor, Debarge, Díaz de Mera (alternate: Mr Fernandez Aguilar), Dmitrijevas, Mrs Dumont (alternate: Mr Legendre), Mr Ehrmann, Mrs Err, Mrs Fehr, Mrs Frimannsdóttir, MM. Hordies, Ilascu (alternate: Mr Mocioi), Ivanov, Jakic, Jarab, Lord Judd, MM. Karpov, Kolb, Koulouris, Kozlowski, Laakso, Lauricella, Liapis, Libicki, Mrs Lörcher, MM. Loutfi, Luís, Mrs Markovska, MM. Moreels, Mularoni, Mutman, Norvoll, Oliynyk, Mrs Onur, MM. Ouzký, Popa, Pullicino Orlando (alternate: Mr Debono Grech), Risari, Rogozin (alternate: Mrs Gamzatova), Saglam, von Schmude, Schweitzer, Mrs Shahtakhtinskaya, Mr Slutsky, Ms Smith (alternate: Mr Hancock), Mrs Stoisits, MM. Szinyei, Tabajdi, Tahir, Telek, Tkáč, Udovenko (alternate: Mr Gaber), Wilkinson, Wray, Yáńez Barnuevo, Mrs Zwerver.

N.B. The names of those members present at the meeting are printed in italics.

Secretaries of the committee: Mr Lervik, Mrs Nachilo, Mr Adelsbach.


1 Cf. the recent example of a Portuguese citizen who has been served an expulsion order for use of narcotics despite having been resident in Germany for years, being married to a German national and having had a child with her.

2 Polish Aliens Act, 25 June 1997, Article 13.

3 Pedro LIMA and Régis SAUDER, "Arenc, inhumaine antichambre du depart” (Arenc, the inhuman antechamber to departure), Le Monde diplomatique, November 1999, p. 25.

4 Rule 164 of the United Kingdom's Immigration Rules, HC251.

5 Michaël Faure, “Des immigrés, bannis de la ‘double peine’” (Immigrants twice penalised as a result of expulsion), Le Monde diplomatique, November 1999.

6 International Covenant on Civil and Political Rights, United Nations General Assembly Resolution 2200 A (XXI) of 16 December 1966; 23 March 1976.

7 ECHR, 7 August 1996, Chorfi against Belgium.

8 United Nations Human Rights Committee, General Comment No. 27 on freedom of movement, 2 November 1999, CCPR/C/21/Rev.1/Add.9.

9 Communication No. 538/1993, 1 November 1996, Stewart against Canada, CCPR/C/58/538/1993.

10 CDMG (98) 11, Kees Groenendijk, Elspeth Guild, Halil Dogan, February 1998.

11 Austria, Belgium, Denmark, Estonia, France, Germany, Hungary, Italy, Lithuania, Netherlands, Poland, Russian Federation, Slovenia, Spain, Sweden, Switzerland, Ukraine and United Kingdom.

12 Michaël Faure, "Des immigrés, bannis de la 'double peine'" (Immigrants twice penalised, as a result of expulsion), Le Monde diplomatique, November 1999, pp 24 and 25.

13 Source: “Double jeopardy: 315 foreigners to be deported after serving their sentences”, FARR, June 2000.

14 Pedro LIMA and Régis SAUDER, "Arenc, inhumaine antichambre du depart” (Arenc, the inhuman antechamber to departure), Le Monde diplomatique, November 1999, p. 25.

15 Ralf Jaksch, “Versehentliche Abschiebung: Amtschef in Erklärungsnot”, Die Welt, 23 February 2000.

16 Source: "Deportation of Criminal Aliens: a Geopolitical Perspective", Margaret H Taylor and T Alexander Aleinikoff, Inter-American Dialog, June 1998.

17 Source: Alarm Aktuell “Ausländer immer weniger erwünscht”, 1998.

18 Alien criminality, or crime committed by foreigners.

19 Source: "Die Polizeiliche Kriminalstatistik (PKS) als Quelle von Wahn", Farin/Seidel-Pielen.

20 "Dynamics of Migration and Crime in Europe: New Patterns of an Old Nexus", Ernesto Savona in co-operation with Andrea di Nicola and Giovanni da Col, paper prepared for ISPAC, international conference on "migration and crime: global and regional problems and responses", Courmayeur, 5-8 October 1996.

21 Source: “La double peine, c’est le pire” (Double punishment is the worst-case scenario), Violaine Carrčre, ethnologist, Plein Droit No. 45, May 2000.

22 Patrick Liebermann, “Double peine pour double faute, en finir avec le bannissement des immigrés” (Double punishment for double offence: let’s have done with the banishment of immigrants), Revue du Droit des Etrangers, No. 109, July-August 2000, pp. 355-358, and Sylvia Zappi, “Aux Baumettes, avec le sous-proletariat des sans-papiers” (In Les Baumettes prison with the illegal immigrant sub-proletariat), Le Monde, 6 September 2000.