TIGHTENING THE WALLS: HARMONIZATION OF IMMIGRATION AND ASYLUM POLICIES IN THE WAKE OF POLITICAL UNION
Legal immigration into the EC Countries will become evermore difficult for third country citizens, due to common restrictive visa requirements, to the elaboration of conventions on the readmission of undesired migrants by transit states or by their home countries and the obligation for each EC Member State to give priority to EC nationals on the labor market. The right of asylum risks to be further undermined by a common reinterpretation of the fundamental rules stated in the Geneva Convention.
The guiding rules for these policies can be found in the reports prepared by the Ad Hoc Group Immigration and by the immigration ministers for the Maastricht conference of the European Council. The institutional framework for the implementation of these policies is presented under the rubric "Cooperation in the spheres of justice and home affairs" of the draft treaty on European Union as agreed upon in Maastricht on December 9 and 10, 91. The final version of the treaty is to be signed in February.
The immigration ministers and the Ad Hoc group press for accelerated harmonization with regard to the fundamental legal grounds of migration and asylum policies. The harmonization of procedures is percieved as less urgent (It is not so important, how the procedure is carried out as long as the result is the same in each EC-country).
The two reports mainly concentrate on listing up possible criteria for the harmonization of restrictive and summary procedures:
Notorious transit and emigration countries shall be pressed to take back irregular migrants and even refugees.
The reports demand for common obligatory criteria to be agreed upon for the definition of the growing number of inaccurate terms which distinguish modern asylum law vocabulary: e.g. "obviously unfounded", "safe country", "first country".
But the attempts in the reports - laudable as such - to define possible objective criteria for the applicability of these terms, only add to the reigning juridical insecurity (e.g. the passage trying to interprete false identity as a criterion for an obviously unfounded application).
The reports also call for the creation of similar conditions of reception of asylum seekers in all EC states. Inter alia the ministers deplore that asylum seekers in certain countries have greater freedom of movement or benefit from more social assistance than in others which makes these countries more attractive for refugees.
The author groups remark that in some countries even illegal immigrants benefit from certain forms of social assistance.
Rejected asylum seekers in various EC member states manage to escape deportation by obtaining some other form of residence permit or by simply staying illegally.
Some countries have in the past tended to regularize sometimes large groups of clandestines by amnesty provisions. In the view expressed in the reports such measures hinder an efficient implementation of a common policy against illegal immigration, weaken the credibility of the EC's immigration and asylum policy and sap mutual confidence of the EC member states with regard to carrying out a immigration policy serving the common interests of the Community.
It is quite obvious that this view will leed to a more vigourous repression against illegal migrants (including rejected asylum seekers).
The Austrian example shows which effects these guiding rules already have in the domain of asylum legislation (see article in this circular: Austria: New restrictive law threatens right of asylum).
Once again it is called for stronger punitive action against smuggler rings and airlines transporting ill-documented passengers. In contrast, no concrete proposals are made with regard to such action against employers recruiting illegal work force
In the view of the ministers and the Ad Hoc group, labor market policies should no longer be defined on a national level. The principal of "preference for the Community" must be implemented, i.e. the employers must be obliged to recruit EC-workforce. Recruiting in third countries should be authorized only when EC-workforce is not available. Increased mobility of the EC workforce will result in a decreasing demand for workforce from third countries.
Thus, the door for legal immigration from non European countries is practically shut.
Quite logically the reports conclude that such policies will lead to a rise of illegal immigration which can only be contained by "a strict control both on the borders and inside the member states". In this context the Ad hoc group asks th good question, "to which extent it is possible to efficiently counter illegal immigration without violating the democratic principles of the member states of the EC."
The European Council of Maastricht has expressed its general approval for the policy guidelines developed in the two reports.
Yet the "provisions on co-operation in the spheres of justice and home affairs" in the Treaty on the Union indicate that the policy of harmonization in the spheres of immigration, asylum, justice, police and internal security will further remain a domain reserved for inter-governmental cooperation. Community law and Community institutions are further kept out of the game - in spite of repeated and insistant appeals by the European Parliament, to give it more legislative power and to strenghten the Communities institutional role.
Thus it would be wishful thinking to hope for more institutional clearness, for transparency and improved democratic control in the spirit of checks and balances. Impenetrable inter-governmental "working groups" of the kind of TREVI and others will further have a leading role in building European unity.
A common policy under Community legislation is provided for only with regard to visas (entries of short duration). In order to determine the third countries whose nationals will have to apply for an EC-visa, the Council of Ministers must vote unanimously. A proposal in the Union Treaty's draft text to transfer competence over the general conditions governing the legal entry to and the movement within the EC territory was rejected, as well as a Belgian proposal, supported by Germany, Italy and Spain, to enable Community action against "abuses" of the right of asylum.
It is true that the possibility of a transfer of further domains of cooperation named in the provisions on justice and home affairs from intergovernmental agreements (as e.g. the Schengen-Agreement or the Dublin Convention) to Community legislation is provided for in the Union Treaty. But each such transfer would require a unanimous decision by the Council.
To sum up what appears to be the main results of Maastricht:
A quite general agreement seems to reign among the governments of the EC member states with regard to developing together an evermore restrictive immigration and asylum policy and to extending police control and power (see article on Europol). But they obviously prefer to pursue this policy in the framework which has proved effective in the past: intergovernmental secrecy rather than constitutional democracy.
Nicholas Busch
sources: Rapport des Ministres de l'Immigration au Conseil européen de Maastricht sur la politique de l'immigration et d'asile, Bruxelles, 3.12.91, SN 4038/91 WGI 930; Commission des Communautés européennes, sécrétariat général: Conseil Européen de Maastricht, les 9 et 10 décembre 1991 - conclusions de la présidence, Bruxelles, 10.12.91 SI(91) 910; Projet de Traité sur l'Union (présenté par la présidence néerlandaise des instances ministérielles de la Communauté); Groupe ad hoc Immigration: Contribution du sous-groupe "Asile" du groupe ad hoc "Immigration" au rapport à présenter au Conseil européen des 9 et 10 décembre 1991, Bruxelles 5 nov. 91, SN 3775/91 WGI 897 AS 96; "Migration News Sheet", Brussels, Jan 1992, No. 106/92-01; "Le Monde", 7/11/12.12.91.