Statewatch Analysis: EU immigation and asylum discussions


Steve Peers, Reader in Law, University of Essex, steve@peers100.fsnet.co.uk

One of the assumptions underlying the Seville summit (European Council) is that there has been a failure to make signification progress on adoption of EU immigration and asylum proposals. The discussions on many of these proposals are still outstanding, even though they date back as far as 1999. Who is responsible for this failure?

Treaty framework

The agenda for adoption of EU immigration and asylum law is partly set by the European Community (EC) Treaty as amended by the Treaty of Amsterdam, which requires agreement on a number of measures within five years of the entry into force of the Treaty of Amsterdam--so by May 1, 2004. In particular, this deadline applies to legislation concerning:

- the rules governing which Member State is responsible for considering the application for asylum by each asylum-seeker in the EU;
- minimum rules on reception conditions for asylum-seekers;
- minimum rules on procedures for considering applications for asylum;
- minimum rules on the definition of ‘refugee';
- minimum rules on ‘temporary protection';
- minimum rules on ‘subsidiary protection'; and
- illegal immigration.

Also the EC has power to adopt rules on other matters, but without being subject to a deadline:

- rules on the balance of effort (burden-sharing) concerning asylum-seekers and refugees;
- rules on the entry and residence of third-country nationals (for example, to take up work, for family reunion or as students); and
- rules on permitting third-country nationals to take up residence in another Member State after residence in one Member State.

Tampere European Council

The Tampere European Council, meeting in autumn 1999, agreed to a number of principles which would govern the adoption of and the schedule for adoption of EU immigration and asylum law. These principles are as follows (excerpt from Tampere Conclusions):

A. A COMMON EU ASYLUM AND MIGRATION POLICY

The separate but closely related issues of asylum and migration call for the development of a common EU policy to include the following elements.

Partnership with countries of origin

The European Union needs a comprehensive approach to migration addressing political, human rights and development issues in countries and regions of origin and transit. This requires combating poverty, improving living conditions and job opportunities, preventing conflicts and consolidating democratic states and ensuring respect for human rights, in particular rights of minorities, women and children. To that end, the Union as well as Member States are invited to contribute, within their respective competence under the Treaties, to a greater coherence of internal and external policies of the Union. Partnership with third countries concerned will also be a key element for the success of such a policy, with a view to promoting co-development.

In this context, the European Council welcomes the report of the High Level Working Group on Asylum and Migration set up by the Council, and agrees on the continuation of its mandate and on the drawing up of further Action Plans. It considers as a useful contribution the first action plans drawn up by that Working Group, and approved by the Council, and invites the Council and the Commission to report back on their implementation to the European Council in December 2000.

A Common European Asylum System

The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement.

This System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. To that end, the Council is urged to adopt, on the basis of Commission proposals, the necessary decisions according to the timetable set in the Treaty of Amsterdam and the Vienna Action Plan. The European Council stresses the importance of consulting UNHCR and other international organisations.

In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union. The Commission is asked to prepare within one year a communication on this matter.

The European Council urges the Council to step up its efforts to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States. The European Council believes that consideration should be given to making some form of financial reserve available in situations of mass influx of refugees for temporary protection. The Commission is invited to explore the possibilities for this.
The European Council urges the Council to finalise promptly its work on the system for the identification of asylum seekers (Eurodac).

Fair treatment of third country nationals

The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia.

Building on the Commission Communication on an Action Plan against Racism, the European Council calls for the fight against racism and xenophobia to be stepped up. The Member States will draw on best practices and experiences. Co-operation with the European Monitoring Centre on Racism and Xenophobia and the Council of Europe will be further strengthened. Moreover, the Commission is invited to come forward as soon as possible with proposals implementing Article 13 of the EC Treaty on the fight against racism and xenophobia. To fight against discrimination more generally the Member States are encouraged to draw up national programmes.

The European Council acknowledges the need for approximation of national legislations on the conditions for admission and residence of third country nationals, based on a shared assessment of the economic and demographic developments within the Union, as well as the situation in the countries of origin. It requests to this end rapid decisions by the Council, on the basis of proposals by the Commission. These decisions should take into account not only the reception capacity of each Member State, but also their historical and cultural links with the countries of origin.

The legal status of third country nationals should be approximated to that of Member States' nationals. 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 EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence.
The European Council endorses the objective that long-term legally resident third country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident.

Management of migration flows

The European Council stresses the need for more efficient management of migration flows at all their stages. It calls for the development, in close co-operation with countries of origin and transit, of information campaigns on the actual possibilities for legal immigration, and for the prevention of all forms of trafficking in human beings. A common active policy on visas and false documents should be further developed, including closer co-operation between EU consulates in third countries and, where necessary, the establishment of common EU visa issuing offices.

The European Council is determined to tackle at its source illegal immigration, especially by combating those who engage in trafficking in human beings and economic exploitation of migrants. It urges the adoption of legislation foreseeing severe sanctions against this serious crime. The Council is invited to adopt by the end of 2000, on the basis of a proposal by the Commission, legislation to this end. Member States, together with Europol, should direct their efforts to detecting and dismantling the criminal networks involved. The rights of the victims of such activities shall be secured with special emphasis on the problems of women and children.

The European Council calls for closer co-operation and mutual technical assistance between the Member States' border control services, such as exchange programmes and technology transfer, especially on maritime borders, and for the rapid inclusion of the applicant States in this co-operation. In this context, the Council welcomes the memorandum of understanding between Italy and Greece to enhance co-operation between the two countries in the Adriatic and Ionian seas in combating organised crime, smuggling and trafficking of persons.

As a consequence of the integration of the Schengen acquis into the Union, the candidate countries must accept in full that acquis and further measures building upon it. The European Council stresses the importance of the effective control of the Union's future external borders by specialised trained professionals.

The European Council calls for assistance to countries of origin and transit to be developed in order to promote voluntary return as well as to help the authorities of those countries to strengthen their ability to combat effectively trafficking in human beings and to cope with their readmission obligations towards the Union and the Member States.

The Amsterdam Treaty conferred powers on the Community in the field of readmission. The European Council invites the Council to conclude readmission agreements or to include standard clauses in other agreements between the European Community and relevant third countries or groups of countries. Consideration should also be given to rules on internal readmission.

Implementation

As the Tampere European Council conclusions indicate, there was alrady one proposal for EU asylum law outstanding already: the proposed Regulation establishing ‘Eurodac', a system for taking and comparing fingerprints of asylum-seekers. This Regulation was agreed by the Council in December 1999 (under the Finnish Council Presidency) and then formally adopted by the Council in December 2000.

However, it proved much harder to agree other proposals. Over the next two years, by September 2001, the Commission proposed legislation on all seven aspects of asylum law (comprising six proposals) and three core areas of legal migration: family reunion, migration for employment (or self-employment) and the status of long-term residents, including movement to other Member States. However, the Council had adopted only two of these nine proposals by mid-June 2002, although it had reached agreement informally on another one.

The following table sets out what happened with each proposal:

1) Regulation on responsibility for asylum applications (‘Dublin II')

- proposed: July 2001 (in Belgian Council Presidency)
- one discussion by Council working party during Belgian Council Presidency
- intensive discussions in Council working party, SCIFA, Coreper, Council during Spanish Council Presidency, but no agreement yet

2) minimum rules on reception conditions for asylum-seekers

- proposed: April 2001 (in Swedish Council Presidency)
- no discussions by Council working party during Swedish Council Presidency
- frequent discussions by Council working party during Belgian Council Presidency
- intensive discussions in Council working party, SCIFA, Coreper, Council during Spanish Council Presidency; informal agreement in April 2002

3) minimum rules on procedures for considering applications for asylum

- proposed: Sept. 2000 (in French Council Presidency)
- one discussion by Council working party during French Council Presidency
- several discussions by Council working party during Swedish Council Presidency
- one discussion by Council working party during Belgian Council Presidency; discussion by Council, Sept. 2001
- Belgian Council Presidency terminated discussions on proposal, Sept. 2001
- agreement instead on Council ‘Conclusions' concerning proposed directive, Dec. 2001
- no discussions during Spanish Council Presidency

4) minimum rules on the definition of ‘refugee' & minimum rules on ‘subsidiary protection'

- proposed: Sept. 2001 (in Belgian Council Presidency)
- no discussion by Council working party during Belgian Council Presidency
- discussions by Council working party began during Spanish Council Presidency, March 2002

5) minimum rules on ‘temporary protection'

- proposed: May 2000 (in Portuguese Council Presidency)
- no discussion by Council working party during Portuguese Council Presidency; initial discussion by ministers at May 2000 Council
- discussions by Council working party began during French Council Presidency
- intensive discussions in Council bodies during Swedish Council Presidency
- agreement on text, May 2001; formal adoption, July 2001

6) rules on the balance of effort (burden-sharing) concerning asylum-seekers and refugees

- proposed: Dec. 1999 (in Finnish Council Presidency)
- regular discussion by Council working party during Portuguese Council Presidency
- agreement nearly reached, May 2000 Council
- further discussions in Council bodies during French Council Presidency
- agreement on text and formal adoption, Sept. 2000

7) rules on family reunion

- proposed: Dec. 1999 (in Finnish Council Presidency)
- regular discussion by Council working party during Portuguese Council Presidency
- some discussions in Council working party during French Council Presidency
- intensive discussions in Council working party, Coreper, Council during Swedish Council Presidency
- discussions in Coreper, Council during Belgian Council Presidency
- Belgian Council Presidency terminated discussions, Sept. 2001
- no discussion during Spanish Council Presidency

8) long-term resident third-country nationals

- proposed: Mar. 2001 (in Swedish Council Presidency)
- one discussion by Council working party during Swedish Council Presidency
- regular discussions in Council working party during Belgian Council Presidency
- regular discussions in Council working party during Spanish Council Presidency

9) migration for employment or self-employment

- proposed: July 2001 (in Belgian Council Presidency)
- no discussion by Council working party during Belgian Council Presidency
- discussions began in Council working party during Spanish Council Presidency, March 2002

The Laeken European Council

The pace of discussions was so slow that the Belgian Council Presidency suggested to the Laeken European Council, due to review the progress on the Tampere European Council conclusions in December 2001, that it set deadlines to consider further developments. Instead, the Laeken European Council requested revised drafts of three of the outstanding proposals:

Laeken European Council excerpts

A true common asylum and immigration policy

38. Despite some achievements such as the European Refugee Fund, the Eurodac Regulation and the Directive on temporary protection, progress has been slower and less substantial than expected. A new approach is therefore needed.

39. The European Council undertakes to adopt, on the basis of the Tampere conclusions and as soon as possible, a common policy on asylum and immigration, which will maintain the necessary balance between protection of refugees, in accordance with the principles of the 1951 Geneva Convention, the legitimate aspiration to a better life and the reception capacities of the Union and its Member States.

40. A true common asylum and immigration policy implies the establishment of the following instruments:
the integration of the policy on migratory flows into the European Union's foreign policy. In particular, European readmission agreements must be concluded with the countries concerned on the basis of a new list of priorities and a clear action plan. The European Council calls for an action plan to be developed on the basis of the Commission communication on illegal immigration and the smuggling of human beings;

the development of a European system for exchanging information on asylum, migration and countries of origin; the implementation of Eurodac and a Regulation for the more efficient application of the Dublin Convention, with rapid and efficient procedures;

the establishment of common standards on procedures for asylum, reception and family reunification, including accelerated procedures where justified. These standards should take account of the need to offer help to asylum applicants;

the establishment of specific programmes to combat discrimination and racism.

41. The European Council asks the Council to submit, by 30 April 2002 at the latest, amended proposals concerning asylum procedures, family reunification and the "Dublin II" Regulation. In addition, the Council is asked to expedite its proceedings on other drafts concerning reception standards, the definition of the term "refugee" and forms of subsidiary protection.

It can be seen that the European Council asked the ‘Council' to submit revised versions of three proposals. In fact this is a translation error: all the other language versions of the conclusions refer to the ‘Commission' submitting revised versions. Moreover, there was no logical reason to ask for a revised version of the ‘Dublin II' proposal, since the Belgian Council Presidency had only arranged for one discussion of the text, so it was too early to ascertain if discussions were deadlocked. In fact, the Spanish Council Presidency and the Commission simply ignored this request and have been holding discussions based on the Commission proposal of July 2001.

In response to this request, the Commission submitted a revised version of its family reunoin proposal on 3 May 2002, just after the requested deadline. However, it had still not submitted its revised asylum procedures proposal by mid-June 2002, so was running overdue.

Who is to blame?

According to Belgian Prime Minister Verhofstadt, the Commission is principally to blame for the failure to agree immigration and asylum proposals:

Belgian prime minister, Guy Verhofstadt, said the Commission is at fault for dragging its feet, as the 15 leaders have asked the EU Executive to table a new proposal on asylum and immigration before end April. "We must ask ourselves why those proposals were not forthcoming from the Commission," Mr Verhofstadt said after a meeting with the Spanish prime minister in Brussels. [quotation from story, ‘Commission accused of dragging feet on immigration', EUobserver.com, 5 June 2002]

It can be seen from the above that this argument is, taken as a whole, clearly false. In fact, it is the Member States' negotiators in general, and the Belgian Council Presidency in particular, who are responsible for the failure to agree. Apart from the proposals on the definition of ‘refugee' and migration for employment, all of the Commission proposals had been outstanding for over a year by the time of the Seville European Council in June 2002--sufficient time to agree on the proposals if the Member States had the political will to do so. Moreover, the Laeken European Council, tasked with the responsibility of overseeing implementation of the Tampere European Council conclusions, failed to set any deadlines for agreeing the outstanding proposals, even though setting deadlines is a common strategy by European Councils to ensure agreement on important proposals.

The Commission delays in submitting revised proposals which the Belgian Prime Minister refers to does not affect all EU immigration and asylum proposals, but only three. In any event, as pointed out above, one of those revised proposals was submitted in time and another was apparently requested by mistake. Moreover, the tactic of requesting revised proposals from the Commission instead of obliging the Council to act simply ‘passes the buck' on the issue and amounts to a delaying tactic, as it is always open to Council Presidencies to submit their own revised versions of proposed texts in order to break deadlocks and reach agreement in the Council.

More particularly, the disastrous effect of the Belgian Council Presidency on EU asylum and immigration law discussions can be evidenced by the following elements:

- failure to reach agreement on even one proposed asylum or immigration text, unlike the Finnish, French and Swedish Council Presidencies before it and the Spanish Council Presidency since;

- termination of discussions on two important proposals (family reunion and asylum procedures) halfway through the Belgian Council Presidency;

-failure even to begin discussions on two important proposals (migration for employment and self-employment and the definition of ‘refugee' and subsidiary protection); and

- holding only one meeting to discuss the proposal on asylum responsibility (‘Dublin II').

back to Observatory main page



Statewatch News online | Join Statewatch news e-mail list | If you use this site regularly, you are encouraged to make a donation to Statewatch to support future research | Subscribe to Statewatch online just £10 a year

© Statewatch ISSN 1756-851X.Material may be used providing the source is acknowledged. Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement.