EUROPEAN COMMISSION: COMMUNICATION ON IMMIGRATION AND ASYLUM POLICIES
On 23 February, the European Commission adopted a Communication to the Council and the European Parliament drafted by Commissioner Flynn. Compared to earlier statements of the Commission regarding this domain, the Communication must be welcomed as a step forward in that it acknowledges the strong interrelation of asylum and immigration policies. For the first time it at least addresses some of the major challenges in these fields. Thus, a stronger accent is put on the permanence of migration pressure and the urgency of combatting its root causes.
However, the Communication has once again failed to propose a coherent programme of action. There are fundamental contradictions of some its findings and concrete measures of control proposed.
Referring to its Communication on Immigration in October 1991 (SEC (91)1855: see FECL No.2, p.6) the Commission once again emphasises a comprehensive approach including measures for reducing migration pressures, controlling migration flows, and improving integration policies for legal immigrant residents in the EC.
Such an approach must consist of three main elements:
- reducing migration pressure by attacking root causes;
- monitoring and controlling migration flows;
- introducing measures favouring the integration of legal immigrants.
This requires European co-ordination of action in the domains of foreign policy, economic co-operation and immigration/asylum.
In the view of the Commission, this comprehensive approach is more necessary than ever as "no international forum...has yet proved capable of making such a policy operational". Thanks to the (Maastricht) Treaty on European Union (TEU) and namely its "third pillar" (on Justice and Home Affairs) the EU now "has the institutional means to do so". The TEU introduces the obligation for the Member States "to co-operate within a single institutional structure on matters now recognised formally as being of common interest".
According to the Communication, one of the most important developments in European migration policies since 1991 has been the introduction of the concept of "temporary protection" in the context of the conflict in former Yugoslavia. The objective is to "avoid an over-burdening of asylum procedures in cases of mass influx".
The Communication, however, notes that there is no uniform pattern in the secondary rights (e.g. family reunification, work, the right to seek permanent residence, etc.) of those who enjoy some form of temporary protection and advocates the setting up of clear common standards to be defined in a Convention on temporary protection. (Temporary protection: see FECL No.7,p.5; FECL No.22,p.6).
Commenting on the implementation of the European Council's 1991 work programme aimed at harmonisation of asylum/immigration policies, the Communication is far from enthusiastic when noting that there has been "approximation rather than harmonisation". As an illustration the Communication names the policy initiated by the EU-Immigration ministers at their London Conference in November 1992 (see FECL No.11, p.2,10) aiming at mutual approximation of practice by means of common "Resolutions", "Recommendations" and "Conclusions" rather than through genuine legal harmonisation. The European Commission now appears to be questioning the efficacy of such measures. The Resolutions are not legally binding, it remarks. Their interpretation and implementation is left up to to each Member State, and important issues, such as family formation i.a., are entirely left out in the scheme. On this point, the Commission's conclusions are remarkably unequivocal: "Achieving and implementing a common policy will not be possible without greater reliance on legally binding instruments and procedures to ensure uniform interpretation of those common rules...in relation to both substantive and procedural law...".
It remains to be seen if this statement will mark the beginning of a turn away from informal "ad hoc" approximation of practice. The latter has been clearly favoured by senior officials in the numerous intergovernmental bodies dealing with immigration, asylum and internal security, while it regularly draws the ire of the European Parliament, denouncing the lack of accountability, and judicial and democratic control inherent in such proceedings (see FECL No.20,p.8; FECL No.21,p.6).
Migration pressure
Looking back on the development of migratory flowss since 1991, the Commission concludes that "immigration is not a temporary phenomenon and...assumptions to that effect which were sometimes current in the 1950s and 1960s were based on a fundamental misconception...". Moreover the Commission cautiously advocates a less restrictive view of immigration by stressing the eventuality that "in the long run, for example, for demographic reasons Europe would have to increase possibilities for legal immigration".
Availability of accurate information (harmonised statistics) on migratory movements is a prerequisite for action, it says in the Communication. Reliable statistics would also meet the concerns of a public which are fuelled by the absence of a clear picture. There is a need to compare data with information provided by NGOs and for an "early warning" system permitting major migratory movements to be forecast.
Earlier recommendations of the Commission aiming at improved, harmonised collection of information have met with little enthousiasm from Member States, however. Thus the Commission's attempt to conduct studies to determine the resources available to obtain harmonised information on migration flows with the help of Member States ended in failure. In 1991 the Commission sent a questionnaire to the Member States, but, as it dryly says in the Communication "Member States either failed to reply at all or in some cases did so too slowly to be useful".
The Communication mentions the work of the CIREA (Centre for Information, Discussion and Exchange on Asylum) and the CIREFI (Centre for Information, Discussion and Exchange on the crossing of Borders and Immigration), but notes that the information provided by the Member States "is as yet not always directly comparable" and that there are limits set to the CIREA and the CIREFI with regard to the study of the causes of migration pressures.
Considering this, the Commission takes up the idea of the creation of an "observatory" which would not be confined to the collection and interpretation of merely statistical data and thus would better meet the need for a comprehensive approach. However, the Commission hurries to underline that such a new body should not lead to more bureaucracy...
Not all forms of immigration are undesirable, the Communication emphasises. "Migration pressure" refers to forms of inward movement "for which there is no specific demand in the Union".
Furthermore, due to humanitarian obligations, a distinction must be made between various types of migration pressure. Thus there are types of immigration undesirable even from the immigrant's point of view, i.e. where he/she would normally have preferred to stay in his/her country, had the human rights situation there been better. There are no underlying negative reasons when family reunification is concerned: "An immigrant joining his or her family is doing no more than exercising his or her basic human right".
As a consequence, dealing with the root-causes of migration should concentrate on "those forms whose underlying causes are inherently undesirable".
Refugees are part of this "inherently undesirable" migration. With regard to them, the Communication has little more than a truism to offer: emphasis of the EU and its Member States on the respect for human rights and the rule of law in their foreign relations can contribute to alleviating refugee pressure. One more concrete proposal, however, deserves mention. The Commission quite accurately points out that information obtained during the examination of successful asylum applications is a "source of information which is underutilised at present" in determining the human rights situation in countries of origin. "Information provided by refugees may well contain very precise indications on human rights violations in their countries of origin, which could easily form the basis for follow-up action at bilateral or multilateral level against the country concerned".
Considering the general trend among Member States to base their assessment of the human rights situation in refugee producing countries on reports often biased as a result of diplomatic requirements rather than on the information provided by both victims of repression and NGOs present on the spot, the Commission's proposal makes sense. Its consequent application however would imply a fundamental turnabout in the asylum and human rights policies of the EU and its Member States, in total contradiction to current practice. The Commisson fails to make any proposal on how to implement its good idea, thus demonstrating the wide gap between declared intentions and true willingness to act.
The Communication also deals with types of migration pressure not caused by the human rights situation. It names root causes such as economic disparities, demographic pressures and ecological disasters. It quotes the UN Population Fund (UNFPA) 1993 report on the State of the World Population, according to which the "combination of population pressures and economic imbalances could produce mass migration from poorer to richer countries and mentions the warnings of the UNHCR and the UNFPA that incidental and longterm ecological factors (e.g. droughts, erosion and desertification, and the rising sea level) likely to produce massive migratory movements are often neglected. It states that "it may turn out that international migration is the sequel of internal migration from rural to urban areas". The mere fact that these fundamental problems are, at last, mentioned in a statement of the Commission on immigration should be welcomed as a step forward. Yet once again, proposals on how to meet these enormous challenges are held in general declarations on the need for "economic co-operation", "liberal trade policy", "development co-operation", "the "establishment of a link between more general ecological programmes and migration", "introducing labour-intensive development projects for these rural areas [threatened with depopulation]" and "improving housing and working conditions in urban areas, especially small/medium sized towns". Against the background of the EU's appalling inactivity, if not obstruction in all these fields, the remedies proposed by the Commission sound rather naive, not to say cynical.
Controlling migration flows
"Controlling migration does not necessarily mean bringing it to an end: it means migration management", the Commission states. In Commissioner Flynn's draft proposal for the Communication, this sentence is followed by another one, just as important: "It calls for a combination of admission and repatriation policies that are well-rooted in society and well-understood by all concerned as being justified and equitable".
This latter sentence can not be found in the final text adopted by the Commission. Instead, it says: "Defining grounds for admission in clear terms makes it possible to translate those concepts into practical policies. The definition and implementation of policies in order to deal with irregular forms of immigration will be another essential element in the control of migration flows".
Was this statement suppressed because the Commission viewed Mr. Flynn's emphasis on a policy well-understood by all concerned - i.e. even the immigrants concerned - as justified and equitable as implying too strong a bow to public calls for transparency and democratic accountability? Or was it suppressed because of the implicit acknowledgement of a right of even illegal and would-be immigrants to justified and equitable treatment?
However that may be, the suppression of the statement is regrettable.
Under the rubric of Admission policies the Commission inter alia proposes:
- setting up of a Convention on family reunification aimed at putting an end to legal uncertainty in that domain;
- the introduction of temporary work schemes, training programmes, and regulations for frontier and seasonal workers;
- the definition of admission on humanitarian grounds.
Admission policies leading to a brain-drain in countries of emigration should be avoided and the return of foreigners admitted within temporary schemes must be enforced, the Communication stresses.
As for asylum, it is "by definition impossible to curb the number of refugees to whom Member States are required to give protection". Thus, regarding this category of immigrants, not their number but managing the examination of asylum applications in order to ensure fair and efficient procedures is the objective of control.
The Commission acknowledges that "the introduction of pre-screening procedures [e.g. the "safe country" and "manifestly unfounded" principles] aimed at excluding certain categories of asylum applications from the more substantive examination procedures, with a view in particular to identifying manifestly unfounded applications, carries the risk that Member States, unless they take great care, may involuntarily find themselves violating the principle of non-refoulement". Considering this, the Commission calls for the harmonised application of the refugee definition of article 1A of the 1951 Geneva Convention and namely for the elaboration of a Convention on manifestly unfounded asylum applications and the implementation of the third host country principle.
A reflection on the efficiency of all too restricted access to the asylum procedure diserves particular mention:
"In the absence of active measures to reduce migration pressures, would-be asylum seekers may turn to illegal immigration if asylum procedures are no longer accessible to all. It is unlikely that the costs involved in effectively countering such illegal movements would be any less than actual costs of dealing with the asylum requests. The advantage of the asylum procedure, however, is that the majority of cases, and especially in case of manifestly unfounded applications, the whereabouts of asylum applicants is known or is readily ascertainable, whereas, in the case of irregular movements, almost by definition a considerable effort will be needed to locate the people concerned."
This passage indicates both the Commission's implicit avowal of the failure of current policies of curbing immigration by restrictive legislation and policing, and its lack of courage to draw the necessary conclusions. The number of people who prefer any situation, no matter how precarious, to the situation in their own countries, is continuously growing. It is obvious that as possibilities for legal entry are gradually suppressed, they will turn increasingly to illegal immigration. Indeed they are already doing so.
The Commission's conclusion, however, that wider access to the asylum procedure alone would curb illegal immigration, is questionable. While it may prove easier to control and, in the end, deport unwanted immigrants who have been identified as a result of a formal asylum application, we should not expect would-be immigrants to continue to resort to the asylum procedure as a means of entry to the EU, once it becomes clear that their chances of actually staying here are less than by entering illegally.
Once again the Communication is giving involuntary proof of the fundamental contradiction between its claim for a "comprehensive" approach to the phenomenon of immigration and a practice limited to policing and repression.
This contradiction is emphasised once more, when the Commission on the one hand calls for blocking traditional entry routes and clamping down on traffickers of immigrants, while on the other hand pointing out that such measures "should not block off any possibility for persons in need of protection to leave their country of origin". Unfortunately, the Commission forgot to consider the question, how a genuine refugee should enter the territory of the Union otherwise than by making use of the few routes constituting loopholes in the "fortress", and by resorting to the costly aid of traffickers. Are not both the routes and the traffickers a direct result of Europe's anti-immigration policies?
Other measures proposed against illegal immigration comprise "rigorous controls at external borders; internal checks (the Communication however admits that it is not easy for the police to identify illegal immigrants in a multi-cultural society), a clamp-down on employers, and effectively barring illegal immigrants from access to all public support schemes.
The signature by all Member States of the UN Convention on Migrant Workers is among the measures proposed to guarantee some basic rights even to illegal migrants.
Integration policies for the benefit of legal immigrants
The Commission repeatedly stresses the importance of speedier and better integration of immigrants residing legally in the territory of the EU and therefore is in favour of joint action for the development of common approaches by the Member States. While the Communication appears to advocate a policy aiming at equal rights and non-discrimination for these non EU-nationals, it remains vague on issues which are controversial among the Member States but would be crucial in carrying out such a policy, e.g. speedier access to citizenship and dual citizenship. According to "Migration Newsheet", a monthly information bulletin on immigration published in Brussels, objections to a more precise definition of common goals in this domain have been raised mainly by Germany.
Anyhow, the goal of facilitating integration of legal immigrants seems quite incompatible with the objective (also mentioned in the Communication) - of intensifying internal and border checks for the purpose of combatting illegal immigration and crime. In practice this form of policing regularly leads to serious discrimination against legal and naturalised immigrants with a non-European appearance.
Even the most well-intentioned integration programmes are difficult to conceive against this background of actual discrimination and precariousness.
Another new obstacle to integration is the scheme of "temporary protection". Persons staying in the EU under this scheme live in a precarious situation of constant uncertainty about their right to remain in the host country. Setting up a Convention is not likely to lead to a fundamental improvement, as the inherent aim of the "temporary protection" scheme is actually none other than preventing permanent immigration, i.e. integration.
N.B
Sources: Draft Communication of the Commission to the Council and the European Parliament on Immigration and Asylum policies, proposed by Commissioner Flynn, January 1994, 33 p., Annex 1: Description of main migratory flows (8 p. plus tables), Annex II: Implementation of the 1991 work programme on asylum and immigration policies (6 p.); Communication of the Commission to the Council and the European Parliament on Immigration and Asylum Policies; Brussels, 23.2.94, 44 p.; *Migration Newssheet* , Brussels, No.132/94-03, p.1.