Is the EU able to develop an own immigration and asylum policy applicable for all its 27 member states? Or will the different historical experiences, economic situations, demographic challenges and social standards in the future 27 member states make such common policy impossible? Klaus Heeger tackles these questions in the December edition of EUWatch, the political journal published by the Ind/Dem Group in the European Parliament.

With the EU facing the sixth enlargement in its history, certain issues, which have always been characterised by particular sensitivity, will not become more easily manageable at EU level. To those issues belong immigration policy and closely related asylum, visa and border control policies.

As EU enlargement may in itself be regarded as “a grandiose migration management strategy” which shifts “the common external border to the East and widens enormously the area of freedom of circulation” (1), the free movement of persons and services from acceding countries, which in the past belonged to the “traditional third countries”, is still perceived as “immigration” in the frame of public debate (2).

Yet given the fact that, with the accession of the new countries, as well as Romania and Bulgaria, their citizens will in principle benefit from full rights as European citizens and from the four freedoms, “protective” measures will only apply on a temporary basis (3). Therefore EU immigration policy is and will be limited to issues of legal or illegal immigration of third country nationals, and to related policies of asylum, visas and border control.

As the 14-15 December 2006 European Council will focus on both the imminent enlargement and the implementation of the “The Hague” Programme, it is expected that the Summit will endeavour to take further initiatives to develop the EU area of freedom, security and justice and give more impetus to policy in relation to asylum, visas, border controls and immigration. Among other matters, the possibility of changing the decision-procedure in the area of legal immigration to qualified majority voting in the Council, with the European Parliament co-deciding, will certainly be on the agenda (4).

Recent events in the Mediterranean, where almost 3000 “boat-people” have been drowned so far in this year alone, call for a stronger responsibility, and thus competence, on the part of the EU. The need for “more solidarity and fair sharing of responsibility including its financial implications” (6) in this area of policy appears to be more urgent than ever.

Against that background, the question whether or not the Community should dispose of more competences and enact more efficient and coherent measures in the area of immigration seems worth a closer look.

The development of an EU immigration policy

European cooperation in the field of immigration and asylum is a relatively recent phenomenon as up to now European countries rather competed among themselves to get the “best” immigrants than they actually cooperating to have a common policy (7).

The early 1980s saw a growth in political will to overcome the “euro-sclerosiss” of the seventies and to revive integration and guarantee the application of the common market principles, especially so far as the free movement of persons was concerned.

As the Member States were unable to reach an agreement on the question whether internal border checks should be abolished (8), only France, Germany, Belgium, Luxembourg and the Netherlands signed the 1985 Schengen Agreement. Yet since the 1985 agreement limited itself to the target of abolishing these controls (Articles 17-33), it was only in 1990 that a further convention, the Schengen Agreement Applying the Schengen Agreement of 1985, was drafted and signed. When this came into effect in 1995, it “abolished the internal borders of the signatory states and created a single external border where immigration checks for the Schengen area are carried out in accordance with a single set of rules. Common rules regarding visas, asylum rights and checks at external borders were adopted to allow the free movement of persons within the signatory states without disturbing law and order” (9).

Meanwhile in 1987 the Single European Act had come into force, providing for the establishment of the single market by 1992 and for decision-making by qualified majority for internal market rules (Article 100a TEEC, now 95 TEC).

Yet it was only with the Maastricht (1993) and Amsterdam (1999) treaties (10) and with the conclusions of the Tampere summit meeting (1999) (11), that an overall EU approach to immigration and asylum was launched.

These developments show that the initial step of eliminating internal border checks was taken before “compensatory” measures such as external management of borders, the coordination between police, customs and the judiciary, the Schengen Information System, and, above all, the tackling of immigration issues were envisaged.

The characteristics of a potential EU immigration policy

Before asking whether or not the Community should dispose of more competences and enact more efficient and coherent measures in the area of immigration, answers must be provided regarding the potential features of such a policy.

If there are to be EU immigration and asylum policies in these fields should they be oriented “towards interception outside the EU and deflection or rejection” or towards “access to and protection within the EU”? (12)

Although some measures were taken in the frame of the Tampere Programme (13), the EU was often blamed for “poor quality “communitarization”, converging at the bottom, where common minimum standards would coincide with the lowest common denominator” (14).

The Hague Programme seemed to set new objectives, underlining the positive aspects of immigration through the definition of “a balanced approach to migration developing a common immigration policy at Union level”, through aiming at the integration “so as to maximise the positive impact of migration on the society and economy” and through the establishment of a common asylum area.

Already in its Communication of November 200015, the Commission stressed that legal immigration constitutes a resource and took the view “that the «zero» immigration policies of the past 30 years are no longer appropriate” (16). In 2002 it stated that “immigration must not be viewed strictly as a problem, but should also be seen as a positive phenomenon” (17). In the framework of a further communication and report (18), the Commission then suggested a more extensive admission of third-country nationals, justifying the need for legal immigration because of the demographic developments.

The latest European approaches19 seem to seek a compromise between on the one hand the preventions of immigration (strengthening border controls, plans to combat illegal immigration, return action programmes, programmes for financial and technical assistance to third countries in the area of migration and asylum, readmission agreements, etc.) (20) and on the other hand the integration of legal immigrants (21).

In the light of these orientations and the ever more strident claims for greater coherence within, and more responsibility and competence for, the EU, is it actually able to develop an own immigration and asylum policy applicable for all its 27 Member States?

Or will the extremely different historical experiences, economic situations, demographic challenges and social standards in the future 27 Member States (see below) make such common policy impossible?

Sensitive issue

Due to the high numbers of immigrants, immigration has always been a particularly sensitive issue to be dealt with among Member States.

Whereas the numbers of asylum seekers in all EU Member States have been dropping continually from some 425,000 in 2002 to some 230,000 in 200522, net immigration into the EU has been rising over the past years to reach its provisional climax in 2004 with a net immigration23 of approximately 2.000,00024. Not to mention those already illegally residing in the different Member States25, another estimated 400,000 people cross the EU’s borders each year without the necessary travel documents (26).

Against this background it is not surprising that the area of immigration is more sensitive for the Member States than those of asylum, visa and border control policies. Up to now the Member Sates´ attitude towards EU initiatives in the fields of illegal immigration and the legal immigration of refugees and other migrants” (27) has been extremely reluctant. This reluctance is also indicated by the fact that the provision of the TEC relating to legal immigration was not subject to the obligation of adopting measures within a period of five years (Articles 63 and 67 TEC) and that it has not yet been moved to the co-decision procedure, as Article 67.2 TEC suggests.

As the right of national veto survived the Tampere meeting of the JHA Ministers on 22 September 2006 (28), it is quite likely that it also survives the December Summit.

The question is therefore whether the Member States, given their different historical experiences with and their different needs for immigrants, will be ready to confer substantial competence to the Community in the near future.

The historical experiences and the different needs for immigrants in the 27 Member States

Member States have different experiences with immigration. They are facing different economic situations, demographic challenges and social standards (29).

While some countries have been traditional immigration countries for a very long period, others have had to face important immigration since only recently. While some EU economies lack human labour resources, others are confronted with high unemployment rates. Some of the wealthy central European states have had strong demands for skilled or unskilled labor in the past; other new emerging economies have that need at present. While certain Member States are in need of highly qualified manpower, the economy of others demands rather unskilled workers, and some if not all EU Member State economies benefit also from illicit work (30). Also different demographic pressures engender different needs for economic immigrants in national labor markets.

Distinct economic and/or geographic circumstances expose the Member States differently to sudden inflows of migrants. Whereas the Mediterranean and East European EU countries are especially exposed as EU border states, as well as because of the steep wealth gradient between the EU- and their East European and Northern African neighboring states (31), the traditionally Central and Northern European countries will be very often the countries of final destination of legal or illegal immigrants.

These differences become even more visible with the recent and future EU enlargements.

In the light of these differences, those objecting to an EU-level approach to immigration policy argue strongly that, given the impossibility to find a common denominator, it will be impossible to determine a common immigration policy for 27 countries, that immigration should remain an issue to be handled by nation states as it classically has been (32).

As immigration policy “is an overarching policy field, with large overlapping with foreign policy outside and with social policy inside” (33), it is argued that “all sovereign States have the right in both natural and international law to control immigration, whether in the interests of preserving the social cohesiveness of their population or maintaining their labour standards” (34).

What political and/or legal solutions could or should be found?

Given these divergences, the question might be justified whether a more coherent European approach, implying more Community competence and initiatives, are needed at all.

Yet giving a positive answer to that question would disregard one of the crucial problems the European Union is facing: Because of the four freedoms of the internal market, the EU citizen’s rights to move and reside freely (35) and, last but not least, the uncontrolled movement of persons within the Schengen area, any measure taken by a Member State in the field of immigration, asylum, visa and border control will affect the other Member States. Even if one invokes the subsidiarity principle, the concept of the “externality”, which refers to the effects that unilateral national action will have on other states, would still call into question the legitimacy of such single-handed national actions.

Therefore other alternatives may come to seem plausible: While resistance to confering further competence on the EU has been traditionally strong in certain fields -such as legal immigration (36), integration of immigrants (37) and/or for the right to determine the number of admission of economic migrants (38) - a much weaker opposition exists in other areas. As political consensus among the Member States seems easier to achieve with regard to a genuine common European asylum system, an efficient management of the EU external borders (at least in principle), an effective EU return policy, a uniform visa code and a European solution for the problems of illegal immigration, more Community competence and initiatives could be sought at least as regards to these fields. Could the solution therefore lie in a stronger “communitarization” of certain areas and the simultaneous (re-) nationalization of others?

The dilemma

Yet the particularity of the areas of immigration, asylum, visa and border controls lies in their indivisibility: for example asylum policy refers to all persons who apply for asylum, irrespective of whether they entered a country legally or illegally; asylum applicants whose claims have been rejected may continue to reside illegally in a Member State; returns are enforced for illegal immigrants and for rejected asylum seekers; status regularization concerns third country nationals illegally residing in a Member State, aliens illegally crossing the EU border, rejected asylum seekers and other tolerated third country nationals.

The dilemma is particularly visible when it comes to the distinction between legal and illegal immigration: Those EU countries which are the principal opponents of integrated Community “solutions” and which therefore also oppose bringing legal immigration policy within the ambit of qualified majority voting, have nevertheless to face the consequences of single-handed national actions by other Member States.

Those EU countries however, which are facing growing and sometimes sudden inflows of migrants and which, according to national, European and international laws, are responsible for controlling their borders, taking asylum seekers into custody, arresting illegal immigrants and “tolerate” other third country nationals (39), are traditionally calling for an “integrated management of migration” based on the principles of solidarity, fair sharing of responsibility including its financial implications (40).

Yet in the absence of such “solidarity” initiatives, which would be part of the field of illegal immigration with the Council stating by qualified majority, Member States can simply make them a “problem” for the other Member States, and thus a “Community problem”, by legalising the status of arrested illegal or clandestine immigrants and other tolerated third country nationals (see the overview on this page), who can then move legally or illegally within the uncontrolled the Schengen area.

As such moves fall partially under the category of legal immigration, which requires unanimity in policy making, and partially under the category of Member states rights to determine the number of admission of economic migrant admitted within their borders, political consensus among all Member States in support Community “solutions” is extremely hard to achieve. Added to this difficulty is regular irritation at single-handed national decisions and the fear that a Member country’s unilateral granting of amnesty to undocumented foreigners will give further incentives for illegal migrants, which in turn would make Community solutions even more unlikely following such national legalization decisions.

This leads to the dilemma that those traditional immigration countries of the EU which object to Community “solutions” because of their fear of having to cope with additional uncontrolled inflows of immigrants, and which maintain their right of national veto in the area of legal immigration and their national competence as regards determining the number of migrants they will admit, deprive themselves of the possibility of hindering other Member States from taking unilateral decisions which in practice lead inevitably to these uncontrolled inflows.

Conclusions

At present, due to the division of competence between the Member States and the Community, immigration policy within the EU seems to fail in every respect. Neither is it capable of responding to different humanitarian crises or of developing standards for the admission and integration of asylum seekers, refugees, illegal, or tolerated but illegal immigrants; nor is it able effectively and sensibly to stem and control the inflow or migrants.

Since, as stated above, a stronger “communitarization” of certain areas and a “(re-) nationalization” of others fail with the indivisibility of the immigration areas, only two solutions appear logically tenable:

1. the “communitarization” of, and the introduction of qualified majority voting for, all areas of immigration;
2. a (re-)nationalisation of these policies alongside the re-introduction of national border controls.

Our discussion points to the fact that the first is unlikely to be achieved in the near future. And since the second is, at least at the present stage, politically and economically unthinkable, the EU and the Member States face a basic dilemma.

It might be an illusion that single Member States alone can control their immigration (41). But what are the alternatives as satisfying European solutions for the immigration problems are currently not discernable?

Klaus Heeger is a German lawyer, based in Brussels since 1996. Since 2002, he is a legal advisor and researcher for the Ind/Dem Group in the European Parliament.

NOTES:

1. Ferrucio Pastore in “Just another Dream?”, Rome, 15 November 2002
2. See e.g. the “Leaders of Europe’s” October debate at http://www.leadersofeurope.com
3. Laid down in the Protocol to the Accession Treaty concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union and its respective annexes on transitional measure: All EU member states must inform the European Commission by the end of this year whether they will impose labour barriers against Bulgaria and Romania. The temporary limits can be applied for a maximum of seven years.
4. The question will also be brought up, whether the areas of cooperation in criminal matters (3rd Pillar) could be moved to the Community Pillar by using Article 42 TEU.
5. MEP Sophia in ‘t Veld in the October debate of „Leaders of Europe” www.leadersofeurope.com
6. The Hague Programme, point 1.2.
7. Ferrucio Pastore in “Just another Dream?”, Rome, 15 November 2002: “Even when traditional European immigration countries decided, in the early 70s to shut the door to new legal entries for economic purposes, that crucial decision was taken by each country in a uncoordinated, competitive way. National borders were closed without considering the possible impact of such closure on the neighbouring countries, not to speak of the impact on the countries of origin”.
8. In the frame of the debates about the meaning of the concept of “free movement of persons”, some Member States felt that this should apply to EU citizens only, which would involve keeping internal border checks in order to distinguish between citizens of the EU and non-EU nationals. Others argued in favour of free movement for everyone, which would mean an end to internal border checks altogether. See Scadplus at http://europa.eu/scadplus/leg/en/lvb/l33020.htm
9. See Scadplus at http://europa.eu/scadplus/leg/en/lvb/l33020.htm
10. With Amsterdam, the Schengen Acquis was integrated into the EU framework and Community competence was established for immigration, asylum, visa and border controls. The Council acted unanimously on immigration matters and the European Parliament was consulted. Based on Article 67 TEC, the areas of border controls, visa, asylum and illegal immigration were gradually moved to the co-decision procedure. Only measures relating to legal immigration (articles 63.3a and 63.4, for which the 5 years period of Article 67 does not apply) remain subject to unanimity voting. Decisions are adopted in principle by 22 States: According to the Protocol on the position of Denmark annexed to the Treaty of Amsterdam, Denmark has no vote. Article 5 allows Denmark to decide whether it will implement into national law decisions to build upon the Schengen acquis taken under the provisions of Title IV of the TEC . It will then be bound by such decision according to international law. According to the protocol on the position of the UK and Ireland, the United Kingdom and Ireland also abstain from voting. An opt-in clause allows the UK and Ireland to participate, on a case-by-case basis, in texts negotiated by the EU.
11. The European Council held a special meeting on 15 and 16 October 1999 in Tampere on the creation of an area of freedom, security and justice in the European Union. Among others, an overall approach to immigration and asylum was launched.
12. Ferrucio Pastore in “Just another Dream?”, Rome, 15 November 2002
13. E.g. - Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. -Directive 2005/85/EC laying down minimum standards in the Member States for granting or withdrawing refugee status. -Regulation 343/2003/EC establishing the criteria and mechanism for determining the state responsible for examining an asylum application lodged in one of the Member States. -Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers. -Directive 2003/86/EC on the right to family reunification. -Directive 2003/109/EC concerning the status of third country nationals who are long term residents. -Directive 2004/114 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service. -Directive 2005/71for the facilitation of the admission of researchers into the EU.
14. Ferrucio Pastore in “Just another Dream?”, Rome, 15 November 2002; See also e.g. EUobserver from 10.10 2006 as to the transposition of Directive 2005/85 EC.
15. Communication from the Commission to the Council and the European Parliament on a Community immigration policy, 22.11.2000.
16. See also the proposal for a directive of 5 December 2001 on conditions for admission and residence of third-country nationals for the purpose of paid employment or self-employed economic activity.
17. Communication of 3 December 2002 on integrating migration issues into the EU’s external relations.
18. Communication of 4 June 2004 on legal immigration and illegal immigration; Annual report on immigration, 16 July 2004.
19. See the 19 July 2006 package adopted by the Commission on Policy priorities in the fight against illegal immigration of third-country nationals, a proposal for a Regulation establishing a Community Code on visas for short-stays and a proposal for a Regulation on the powers and the financing of rapid reaction teams of border guards from Member States who are seconded to another Member State in order to provide technical and operational assistance: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/1026&format=HTML&aged=0&language=EN&guiLanguage=en However, similar proposals were basically already put forward in to the so-called Flynn-paper of 1994, in which the then Commissioner Padraig Flynn defined three key objectives of future EU policies in the field of asylum and immigration: countering migratory pressure; ensuring effective control of immigration; and strengthening the position of legal immigrants; see e.g. http://www.gsoa.ch/zivil/kosov@/kosov@_nato/199905/19990509.0.html
20. See also Commission legislative and work programme: http://ec.europa.eu/atwork/programmes/docs/clwp2007_en.pdf
21. Although the right to determine the number of admission of economic migrant remains with the Member States and although the EU does not have any explicit competence for the integration of TCNs (given that the Constitution and thus its Article III-267.4 did not enter into force), non-binding measures to promote their integration have been proposed (e.g. though a European handbook on integration), while binding measures having an indirect effect on the integration have already been adopted (e.g. through Directive 2003/109/EC concerning the status of third country nationals who are long term residents, according top which long term residents enjoy preference over newly arriving migrants). In its legislative and work programme for 2007, the Commission announces the proposal of a binding Directive the specific objective of which shall be to promote better integration of economic immigrants in the labour market and to establish fair and clear rules and rights for them.
    • See also EUObserver of 27.10.2006: At a recent meeting of the so-called G6, “French minister Nicolas Sarkozy emphasized the importance of a common EU-wide policy on granting asylum and said Europe should negotiate as a bloc with African countries on limiting routes used by illegal migrants”.
22. ECRE, Asylum applications and country of origin information in Europe and EU in 2005, January 2006. OECD on 8 June 2006: http://www.oecd.org/document/8/0,2340,en_2649_37415_36855048_1_1_1_37415,00.html
23. A measure of the difference between those leaving a territory and those arriving. 24 See “Key figures on Europe, Statistical Pocket Book” 2006 at “http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-EI-06-001/EN/KS-EI-06-001-EN.PDF
24. Reliable statistics on the number of those illegally residing in the Member States are difficult to draw up. See Commission staff working document SEC(2006) 1010
25. Euractiv: http://www.euractiv.com/en/justice/commission-tries-get-grips-immigration-crises/article-156869. See also Commission staff working document SEC(2006) 1010
26. Christopher Hein in “Die Asylpolitik der EU am Beispiel Lampedusa, ai-Tagung, 2 December 2005: www.ai-academy.at
27. EUObserver from 22.09.2006
28. For more detailed information:“Key figures on Europe, the statistical pocket book” at http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-EI-06-001/EN/KS-EI-06-001-EN.PDF See also the OECD country profiles for some of the EU Member states at http://titania.sourceoecd.org/vl=1217546/cl=34/nw=1/rpsv/cgi-bin/jsearch_oecd_stats# and the OECD main trends on international migration at http://www.oecd.org/dataoecd/23/41/2508596.pdf
29. Therefore the Commission´s legislative work programme announces a proposal on minimum sanctions for employers of illegally staying third-country nationals, in order to reduce both illegal immigration and the exploitation of such workers: http://ec.europa.eu/atwork/programmes/docs/clwp2007_en.pdf
30. In this context it also seems worth to remind that not few politicians blame the EU fishery agreements with the North African states and the thereby caused impoverishments in these areas, thus further enhancing the readiness to immigrate to Europe. See e.g. MEP Nigel Farage in the October debate of ‘Leaders of Europe’ at http://www.leadersofeurope.com
31. See e.g. MEP Nigel Farage in the “Leaders of Europe”´s October debate at http://www.leadersofeurope.com
32. Ferrucio Pastore in “Just another Dream?”, Rome, 15 November 2002.
33. Anthony Coughlan, personal communication, 22 October 2006.
34. The European Council in Tampere stated that the legal status of third-country nationals should be approximated to that of Member States’ nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union. Directive 2003/109/EC concretises these rights for long-term residents.
35. The area of legal immigration is still subject of unanimity voting in the Council with the EP being merely consulted
36. In the present TEC, a clear legal base for the adoption of integration measures lack. The proposed Constitution would have provided such competence in its Article II-267.4.
37. The competence to determine the number of admission of economic migrants would have remained with the Member States even according to the proposed EU Constitution - Article III-267.5.
38. It is a frequent problem that asylum seekers whose demands have been rejected or illegal immigrants who have been arrested cannot be deported because they have no passports or because their countries of origin are stroke by (civil) wars, refuse their readmission or are simply unknown. In addition, according to Article 2(a) of Directive 2001/55/EC, temporary protection to displaced persons is to be granted “in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection”.
39. On 20 September 2006, Spain appealed to the European Union for rapid action to help it and other Mediterranean members of the EU to stem the flow of illegal migrants from Africa. http://www.townhall.com/News/NewsArticle.aspx?ContentGuid=1ec9be50-3a81-498d-9347-66d0df3fa765
40. MEP Chris Davis in the October debate of Leaders of Europe” at www.leadersofeurope.com