CONCLUSIONES

Directive 2002/90/EG (“Definition Directive”)

Already at the time the Residence Act was created as a consequence of the entry into force of the Immigration Act on 1 January 2005, most of the contents of both Council Directive of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence⁷² and the accompanying framework decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence were transposed into German law. In fact, German criminal law is stricter than required by the EU, because in Germany promoting and enabling unauthorised residence is an offence, even if it is not done for financial gain, but repeatedly or for the benefit of several foreign nationals (Sach-verständigenrat 2004: 362). The optional provision in the Directive, according to which Member States may decide not to impose sanctions “where the aim of the behaviour is to provide humanitarian assistance to the person concerned” (art. 1 (2) of the Directive) was not literally transposed into German law. However, the General Administrative Regulation on the Residence Act points out that persons acting in their professional or socially accept-ed volunteer capacities (such as pharmacists, physicians, midwives, nursing staff, psychia-trists, pastors, teachers, social workers) and who limit their actions to objectively complying with their legally defined or recognised duties related to such occupation or office are not considered to be abetting the above criminal offences (Rule 95.1.4 General General Admin-istrative Regulation on the Residence Act). The exemption from punishment in the case of a one-off act with the aim of providing humanitarian assistance may also be derived from sec. 96 (1) no. 1 Residence Act which defines pursuing financial gain as a constituent ele-ment of the criminal offence of facilitating illegal immigration.⁷³

Directives 2001/40/EC and 2003/110/EC

The Directive on the mutual recognition of expulsion decisions⁷⁴ was likewise trans-posed in the context of the Immigration Act. SIS alerts pursuant to art. 96 (3) SIC are ob-served by the responsible authorities in the visa process, at border and/or entry controls as well as in the process of issuing residence titles. The Directive on the recognition of expul-sion deciexpul-sions is observed just like the Directive on assistance in cases of transit for the pur-poses of removal by air,⁷⁵ and the Council Decisions on the compensation of financial

imbal-72 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorized entry, transit and residence.

73 The repeated offence or an offence for the benefit of two or more foreign nationals are, however, punishable irre-spective of whether the offender derives financial gain from such offence (no. 96.1.1.2 Administrative Regulation on the Residence Act).

74 Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals.

75 Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air.

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ances resulting from the application of the Directive on the mutual recognition of expul-sion deciexpul-sions⁷⁶ and on the organisation of joint flights.⁷⁷ The Residence Act was amended to implement the Transit Directive: a separate sec. 74a entitled “Durchbeförderung von Drittstaatenangehörigen” (transit of third-country nationals) was added. However, due to the limited practicability of the Directive on the mutual recognition of expulsion decisions and the accompanying decision on the compensation of financial imbalances resulting from the application of the Directive these have had little relevance for the German admin-istrative practice so far, other than for a few isolated cases (see Schneider/Kreienbrink 2010:

59).

Directive 2004/81/EC (”Victim Protection Directive”)

The Directive on the residence permit issued to third-country nationals who are victims of trafficking⁷⁸ has been transposed by the adoption of the Act to Implement Resi-dence- and Asylum-Related Directives of the European Union (“EU Directives Implementa-tion Act”) on 14 June 2007. Pursuant to sec. 25 (4a) victims of trafficking may, even if subject to an enforceable requirement to leave, obtain a title for temporary residence – provided they declare their willingness to testify in the criminal proceedings for the offence. Sec. 50 (2a) Residence Act stipulates that for victims of trafficking a deadline for leaving the coun-try shall be set which will allow such victim sufficient time to decide whether he or she is prepared to testify and may not be shorter than one month. The Victim Protection Directive offers national legislators a choice when implementing the Directive on whether to apply the Directive also to foreign nationals who are minors or to foreign nationals whose illegal entry had been facilitated. Germany exercised the first of these options, since the number of minor female victims is assumed to be significant in trafficking crimes. So far, legislators have not opted for the second possibility.

To better coordinate the fight against trafficking, in particular trafficking in women, Germany established a joint working group of the Federal Government and the Laender on trafficking in women (Bund-Länder-Arbeitsgruppe Frauenhandel). In 2009 the working group submitted a proposal for a framework decision to strengthen the combat against hu-man trafficking. The proposal aims at raising European standards in a comprehensive and uniform way, improving the support for victims and stepping up the prosecution of offend-ers.⁷⁹

76 Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the com-pensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recog-nition of decisions on the expulsion of third-country nationals.

77 Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States of third-country nationals who are subjects of individual removal orders.

78 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.

79 See BT-Drs. 16/13804 of 20 July 2009, p. 2.

Directive 2008/115/EC (“Return Directive”)

The Return Directive⁸⁰ was fully transposed into national law when the Second EU Directives Implementation Act (Act to Implement Residence-Related Directives of the Eu-ropean Union and for the Adaptation of National Legal Provisions to the EU Visa Codex) entered into force on 26 November 2011. The rule of the direct effectiveness of directives had been applied until the Act entered into force and as early as on 16 December 2010 the Federal Ministry of the Interior provided the Laender, which are responsible for implement-ing the Law on Foreigners, with guidelines on the principles for the direct application of the Directive after 24 December 2010 (deadline for transposal).

Under the Directive, Member States shall issue a return decision to any third-country national staying illegally on their territory (art. 6 (1)). Since there was no legal concept in German residence law that corresponded to a return decision, the implementation of the Directive resulted in changes. Thus wherever the obligation to leave is established by an administrative act within the logic of German law, such administrative act will be deemed to be the return decision for the purposes of the Directive; where the obligation to leave arises by virtue of the law the administrative act in the form of a written notice of the inten-tion to deport (currently a directory provision in the Residence Act) shall be construed as return decision. Further important modifications resulting from the Directive concerned departure periods, re-entry bans and custody pending removal (in this context see Basse et al. 2011: 364 et seq).

Directive 2009/52/EC (“Sanctions Directive”)

On 20 July 2009 the so-called Sanctions Directive⁸¹ entered into force. The Sanctions Directive, too, was transposed into national law by the Second EU Directives Implementa-tion Act (entering into force on 26 November 2011). Since most of the instruments and rules contained in the Sanctions Directive had already been provided for in German law, the re-lated implementation effort remained relatively limited. German social law, for example, already provided for dissuasive and proportionate penalties against employers who em-ploy, and therefore potentially exploit, illegal immigrants. Pursuant to the Social Code, such an act may be penalised with a fine of up to 500,000 Euros (sec. 404 Social Code III). How-ever, a new provision was included according to which irregular migrants, who had been in illegal employment, may obtain a residence title provided they are willing to testify in court (in analogy to the Victim Protection Directive, see above) (sec. 25 (4b) Residence Act).

Further amendments to German legislation as a result of the implementation of the Direc-tive included a provision on the liability for the costs of removal in the context of sanctioned illegal employment, the creation of new types of charges in criminal law, or the obligation of the employer to pay the agreed remuneration to an illegal employee, including detailed regulations with regard to this legal entitlement, i.e. access to the labour courts (see Basse et al. 2011: 367).

80 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.

81 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

Directive 2001/51/EC (Sanctions against carriers)

Since the Law on Foreigners entered into force in 1965, German law had foreseen an obligation for carriers to return foreign nationals to their countries of origin, if they are denied entry at the border (see Dörig 2005). The Directive⁸² supplements Community law provisions on the control obligations of carriers and corresponding sanctions, which may already be derived from the Convention Implementing the Schengen Agreement (SIC). The Directive was transposed into German law at the time the Immigration Act entered into force on 1 January 2005 (see section 3.1.4 for details). Art. 5 of the Directive specifies the op-tions for sanctioning that are found in sec. 63 (3) of the Residence Act that specifies an ad-ministrative fine against the carrier of at least 1,000 Euros and no more than 5,000 Euros for each foreign national who is transported despite a restraining order.