Statewatch Comments for House of Lords Select Committee on the European Union, sub-committee "F": Commission Communication on Illegal Immigration

[See also annex: Comments on the Green Paper on Return (COM (2002) 175, 10 April 2002) and appendix: Statewatch Briefing on the negotiation of the EU Action Plan on Illegal Immigration]

I. Introduction

1. The following comments concern the Commission Communication on Illegal Immigration,

 full text: COM (2001) 672, 15 Nov. 2001

and are also updated to include comments on the final Action Plan on Illegal Immigration adopted by the Council on 28 February 2002 in response to the Commission's Communication (Council doc. 6621/1/02, 27 Feb. 2002; see attached 'Statewatch Briefing' on the Action Plan).

It was unfortunate that the Commission's Green Paper on Return of irregular migrants was not released until 10 April 2002, five months after this Communication, despite the close links between the issues dealt with in the two documents. Due to these close links, we have attached further comments on the Green Paper in an Annex.

It is also unfortunate that the Commission has not yet, at time of writing, yet released the proposed readmission treaty with Hong Kong (which was initialled back in November 2001) or its Communication on Border Management (promised by the end of 2001), as these measures are highly relevant to the matters under discussion and their absence makes it more difficult to comment in detail on this Communication and the Council's Action Plan. If these documents do become available before the deadline for submissions, of if there are other further relevant developments, Statewatch may send supplementary submissions to the Select Committee.

II General Issues

a) Transparency and Democracy

The process to follow up the Commission's Communication adopted by the European Council (which agreed at Laeken that the Council should adopt an action plan), and then the Council, was gravely lacking in transparency and democratic legitimacy. First of all, the procedure followed by all European Councils is entirely lacking in transparency, without any formal public access to drafts of the conclusions before their adoption. Secondly, as detailed in the attached Statewatch Briefing, the Council did not wait for the European Parliament to respond to the Commission's Communication before adopting its Action Plan, and there was no publication of drafts of the Action Plan before its adoption. The text of the finalised plan was only released to the public two weeks after its adoption, after applications from Statewatch and other researchers, and is still difficult to find online. The first two drafts of the Action Plan, while released to the public after adoption of the Plan, were not listed on the Council register of documents and so are not available online. This is a breach of the Council's obligations under the EC rules on access to documents (as confirmed by the European Ombudsman in his Special report of December 2001 concerning complaint 917/2000 against the Council by Statewatch), which require all Council documents to be listed on the register.

This combination of the Council's refusal to make drafts available before the adoption of the plan (or even to list any of those drafts on the register until just before the date of the Council meeting which adopted the plan) entirely prevented any public or parliamentary comment on the draft Action Plan under discussion in the Council before its adoption. In fact the speed of the Council's agreement on the Plan effectively left no time for public or parliamentary discussion of the Commission's original Communication. This fait accompli contrasts with the greater time spent agreeing the Tampere principles on EU migration and asylum policy, which underwent over fifteen months of detailed discussion in Council bodies dating from the Austrian Council Presidency's strategy paper on this subject in July 1998. It also contrasts with the Commission's new Green Paper on return policy, which puts questions to the public and national and European Parliaments with a view to assessing the answers before proceeding.

Furthermore, the Council's working party on migration (on 20 March 2001) and its Strategic Committee on Immigration, Frontiers and Asylum (on 11/12 April 2001) have already begun discussing the follow-up to the Council's Action Plan, even while the Commission's initial Communication is being discussed by national parliaments and the European Parliament. The Council bodies are even discussing future readmission agreements, even though the Commission's Green Paper on return policy intends to engage with the public and parliaments before any further steps are taken in this area by the Community.

It should also be recalled that the Council disregarded the votes cast by the European Parliament (by a large majority) against various proposed illegal immigration measures (Directive 2001/40 on mutual recognition of expulsion orders, 2001/51 on carriers liability and the proposed measures on facilitation of illegal migration). This adds to the picture of the Council's very limited interest in democratic debate of illegal immigration measures.

b) Human Rights Concerns

The final Action Plan, like the Commission Communication, briefly mentions human rights concerns (paras. 11 and 12 of the final Plan). However, the only consideration here is essentially the human rights obligations as regards entry to and stay on the territory of the EU Member States. There is no consideration of the human rights situation in third countries, which is particularly relevant as regards Part II.C of the Plan (pre-frontier measures), in which the Council contemplates a more active EU policy in third states.

Furthermore, as noted in the attached Statewatch briefing, while the Commission's communication quite rightly states that the EU must take into account the 'political and human rights situation' of a third country before negotiating a readmission agreement with it, the Council's final Action Plan states instead that the EU should take into account 'the interests of the European Union and the Member States' before such negotiations. This unfortunately suggests a highly cavalier attitude to human rights concerns by the Council, which has in effect rejected the Commission's suggestion for a formal commitment to consider the human rights situation in the partner country before negotiating readmission treaties. Moreover, any readmission agreements which are concluded by the EC must be accompanied by an obligation to monitor the human rights situation in the signatory state, coupled with a simplified mechanism obliging the Community to suspend or terminate the readmission treaty if there are significant concerns about human rights practice by the other signatory. As noted at the outset of these comments, it is unfortunate that the Commission has still not circulated the agreed text of the first such treaty with a third state, some five months after agreement on the text.

As regards assistance to third states, it is vital that there should be effective monitoring of the human rights situation before assistance is given and during the award of the assistance, particularly as regards such potentially coercive measures as public registration, reception centres, border control and return. For example, any financial support for another state's return policy should, at the very least, be dependent on full application of the principle of non-refoulement and the corollary existence of an effective system for prior judicial review of expulsions in that state. Such monitoring is particularly necessary because it seems likely that EC funds for such measures will be sent directly to foreign governments, instead of being managed by non-governmental organisations (as with the EC's development policy). There must be absolute public and parliamentary transparency as regards the use of such funds and the necessary human rights monitoring before and during the expenditure.

Generally, the negative attitude of the Council towards express human rights obligations suggests strongly that there needs to be an independent human rights monitor which must be formally consulted before negotiations on readmission treaties begin and while such treaties are in operation. This monitor should also have a role as regards assistance to third states.

Even where the final Action Plan does refer to human rights as noted above, it is hard to resist the conclusion that these are only 'window dressing' intended to assert the EU's commitment to human rights, while there is no actual consideration of the practical application of human rights concerns in specific situations. There is no express reference to human rights protection in particular situations, as regards (for example) the visa identification database, the possible 'central register of aliens' or the application of penalties. The Council's record on this issue is not impressive: it has already refused to adopt the original French proposal to exempt carriers who carry refugees from carrier sanctions; [its measures on irregular migration and trafficking contain fewer human rights protections than the Protocols to the relevant UN Conventions]; and it has agreed only an option for Member States to exempt persons who assist migrants to enter the EU on humanitarian grounds from criminal penalties in its measures on facilitation of illegal migration.

c) Links with other policies

At the outset of its communication, the Commission suggests that illegal immigration is the 'missing link' in EU asylum and migration policy. This assertion is simply risible. Although there has been no previous overarching discussion paper on the topic, to compare with the Commission's communications on asylum and migration in the autumn of 2000, in fact the Council has agreed a number of measures on irregular migration (Directive 2001/40 on mutual recognition of expulsion decisions; Directive 2001/51 on carriers liability; a Directive and Framework Decision on facilitation of illegal entry and residence; a Framework Decision on trafficking in persons). This compares with the limited agreement on asylum proposals (Eurodac, the European Refugee Fund and temporary protection) and the total absence of agreement on legal migration measures. The detailed Annex in the final Action Plan, with deadlines to agree measures in a number of specific areas, contrasts with the failure to set any deadlines for agreement on the numerous asylum and legal migration measures under discussion in the Council.

There is a serious risk that following the conclusions of the Laeken European Council, which (in contrast to the far more balanced Tampere conclusions) were almost entirely concerned with restrictive policies, that the European Union's migration policy will become unbalanced solely or largely in favour of restrictive measures, paying insufficient regard to the protection aspects of migration policy, the economic, social and cultural benefits of legal migration and the importance of ensuring fair treatment for third country nationals, including ensuring security and equal treatment for long-term residents (as recognised in the Tampere conclusions).

Moreover, neither the Commission communication nor the final Action Plan expressly acknowledge that irregular migration flows are made up both of people with a legitimate claim to international protection (refugee or subsidiary protection status) and people who do not have such a claim. So the difficult but necessary task of trying to distinguish between these movements is never undertaken; as noted above, the Council has already failed to take account of this distinction in the measures it has agreed to date. For example, there is an argument that the protection needs of migrants should be a defence (or alternatively, a mitigating factor in sentencing) where penalties are applied to employers of illegal labour or even smugglers, but neither the communication nor the Action Plan considers this prospect.

Also, neither the communication nor the Action Plan address the role that ineffective or unrealistic regulation of legal migration flows plays in the development of irregular migration. Similarly, neither the communication nor the Action Plan addresses the role which amnesties for illegal migrants play in practice as regards this issue. The apparent assumption that the issue of irregular migration can be 'solved' solely by use of further enforcement, prevention and control measures contrasts with the use of de jure or de facto regularisation policies in a number of Member States.

There is no consideration of trade or development policy issues in the communication or the Action Plan. One would not think from reading these documents that irregular migration actually has economic or social causes; the assumption rather is that irregular migration is equivalent to some form of natural disaster that we can largely only respond to. Prevention is confined to technical measures to ensure that the intention to migrate is frustrated or that migrants are persuaded by 'awareness-raising campaigns' that they do not wish to move after all. As with drug prohibition, the phenomenon of irregular migration is considered largely in terms of reducing supply, not demand. There is no consideration of the underlying reasons (apart from the need for protection) why people wish to move to other countries, or any consideration of changes to the EU's trade or development policies (or broader changes to the policies of international financial institutions) that would reduce the desire to move. Would a more substantial write-off of debts for the countries producing large migration flows be a better solution than the plethora of control measures foreseen in the communication and Action Plan?

Finally, it is arguable that the visa list of the EU should be reviewed annually not just with a view to putting countries on, but also to taking countries off. Here the UK could in particular press its partners to consider whether so many New Commonwealth countries need to be on the list, given the UK's long experience of visa-free travel from many of those countries."

III Particular Issues

The Select Committee has asked for comments on nine specific points, which are addressed below in turn.

a) Economic Effects

It is difficult to judge the economic effect of irregular migration, and in fact neither the Communication nor the Action Plan make any effort to do so. More broadly, there is no recognition in either the Communication or the Action Plan that enforcement measures themselves cost money, as regards additional personnel (in consulates, border posts, immigration authorities, labour inspectorates), additional training for those personnel, and additional equipment. Any creation of any new database will inevitably incur considerable costs, just as any further criminalisation of aspects of irregular migration will require additional police, prosecution, court and prison costs. These costs have not been estimated at all; it would be useful to compare these extra costs with the 'cost' of trade, financial and development aid measures that might reduce migration flows as discussed above (in fact, further liberalisation of goods coming from developing countries would benefit consumers), or to at least a rough estimate of the economic cost of irregular migration. It is even possible that, at least for some industries, irregular migration results in a net economic benefit.

The extra cost of assistance from the EU and its Member States to third countries to implement migration restrictions must also be borne in mind.

b) Internal Security

The context in which the Action Plan has been adopted cannot be ignored. In the post 11 September climate the demands of security over peoples' rights and protections appears to be the norm. This is evident in a number of points in the Plan, for example, the possibility of introducing biometric data (point 27), the creation of an EU Visa database and a central register of aliens (point 35) and their application (points 38, 51 and 52) clearly have their roots in the Action Plan against terrorism.

c) Cooperation with third countries

As noted above, there are significant human rights considerations that must be taken into account as regards any cooperation on migration with developing countries. As for its effectiveness, it is difficult to comment in the absence of any evaluation from the Commission (or in the final Action Plan) of the effectiveness of Member States' (or other third states') policies on this issue.

One obvious concern is that encouraging developing countries to spend significantly greater sums on migration control will come at the expense of the social and economic development needs of those countries, as well as the internal security problems in those countries (or their role as transit countries for drugs or arms trafficking). Could those countries' funds, and EU cooperation funds, be better spent on economic or social problems in developing countries or (as regards funds from the EU) debt reduction, thereby reducing migration flows from those states?

The final Action Plan does not address the difficulties in encouraging third countries to agree readmission treaties with the EC, in the absence of reciprocal benefits such as aid, trade concessions, future EU membership or waiver of visa obligations. While the communication refers to possible 'technical assistance' to agree readmission treaties, the Action Plan deletes such a reference. This may prove to be rather naive.

d) Criminal measures

The Communication and the Action Plan do not clearly make out the need for further harmonisation of criminal penalties. In fact, the recently agreed EU measures on this issue were agreed without any detailed consideration of the need to impose further criminal or financial sanctions in this area, given that in many Member States irregular migration has traditionally been addressed as an administrative law problem.

e) UK participation

Since the visa identification system is clearly largely intended to support the joint visa policy applied by the Schengen states, there is no convincing case for the UK to opt in to the system as long as the UK does not participate in the core migration aspects of Schengen. True, the visa identification system will also assist in the application of the Dublin Convention or its replacement, but in that context if there is a clear case for it, the UK could arrange for partial participation in the system, as it has arranged for the Schengen Information System.

Similarly there is no case for the UK participation in the external border measures which are foreseen by the communication and Action Plan.

To some extent, it must be acknowledged that while the UK has convinced other EU Member States that it should be able to choose 'a la carte' from EU migration and asylum measures, it may not prove as easy to convince third countries of this approach. Evidence of this can already be seen in the negotiations for a readmission treaty with Macao, where Macao is unwilling to agree a treaty with an obligation to readmit persons from the UK unless the UK waives visa requirements in return (the UK has opted out of the visa list regulation adopted by the Schengen states, which waives such a requirement for Macao).

f) External border controls

In the absence of the detail that would be expected in the Commission's forthcoming communication on external border management, or the feasibility study underway into the 'European border guard', it is difficult to comment on whether joint controls would be more effective. In fact, it is not clear what either the communication or the Action Plan is advocating as regards this issue.

g) Technical support

As pointed in the attached Statewatch briefing, the references to technical support have been removed from the final Action Plan. There would be a number of basic difficulties with the accountability and legal control of such an agency, particularly as regards access to documents, data protection, and political accountability to national and democratic parliaments. It is disturbing to see, for instance, that the previous regular public reports on the application of the Schengen rules have been discontinued.

In principle, if an EU agency is established, it would likely be more cost-effective to concentrate all such functions in a single agency, which would be based in a single location. However, the press reports on the Laeken European Council suggest that several such agencies could be established, largely (it seems) to award agencies to as many Member States as possible. This approach may be suitable for a child's birthday party, but not for EU taxpayers. As well as the additional expense of extra agencies, unproductive turf battles could develop.

h) Europol

Most of the proposals in the communication and the Action Plan have already been implemented by means of 'Recommendations' and would be further implemented on a proper legal basis if a proposed Protocol to the Europol Convention is agreed. However, there must be some concern if the proposal that Europol not only be given access to the Schengen Information System but also be given the power to add or amend records submitted by member states.

i) Readmission and common standards

As noted above, there are human rights concerns as regards conclusion of readmission agreements, which are acknowledged in the communication but discarded in the final Action Plan.

The Commission has not released any analysis of the usefulness of readmission agreements in reducing illegal immigration. As such it is hard to comment on this issue.

As for minimum standards, they would indeed be useful in facilitating an effective policy, particularly in the context of mutual recognition, if they are set at a high level. However, there is a risk that such standards might be agreed at a very low level. This can be seen as regards discussions on the asylum procedures directive, where the Council has adopted conclusions which presuppose expulsion of all persons in an 'accelerated procedure' (which was apply to large numbers of asylum-seekers) as soon as their application has been initially turned down, without any suspensive effect if they appeal the refusal. Even the possible suspensive effect of a separate application to remain pending consideration of the appeal has been left open. In fact, even the suspensive effect of an appeal following an initial rejection in the regular asylum procedure has been left open in these conclusions (Council doc. 15107/1/01). These planned standards are so low that their compatibility with Article 3 ECHR is highly questionable (on suspensive effect of appeals, see the recent Strasbourg judgments in Jabari v. Turkey and Conka v. Belgium). It could be expected that even lower 'minimum standards' might be agreed as regards expulsion procedures generally in the EU. In that case, any project for 'common standards' at EU level would be highly suspect, unless the Member States with higher standards than the agreed EU minimum were prevented from lowering them by means of a 'standstill' clause.

Annex: Comments on the Green Paper on Return (COM (2002) 175, 10 April 2002)

 full text: COM (2002) 175, 10 Apr. 2002, EUR-lex

Overview

Section 1 of the Green Paper is a short introduction. Section 2 (Part I) then sets out general considerations; section 3 (Part II) discusses harmonisation of law; and section 4 (Part III) discusses readmission agreements. The following comments concern the three substantive parts in turn.

Part I: General considerations

As regards the scope of the paper, the exclusion of legal migration from the Green Paper is welcome. There is no indication of a need for any form of voluntary return system for legal migrants at Community level. Such a system would raise grave doubts about the Community's expressed goals of combating racism and social exclusion, by suggesting that despite their legal residence, there are persons who nevertheless do not 'belong' in the EU. Additionally, there is no legal base in the EC Treaty for the Community to adopt measures concerning the return of legal residents.

The Green Paper should more clearly build into the definition of 'illegal resident' the limitation that a person cannot be considered an 'illegal resident' liable for return until all potential arguments a migrant could wish to make against removal, particularly those based on human rights and humanitarian grounds, have been rejected following a fair and effective administrative and judicial procedure.

In section 2.2, the Commission mentions that regularisation programmes have a part to play as regards irregular migration and meet certain needs. But this important issue is not subsequently mentioned further in the Green Paper. Why not ask questions about the usefulness of a Community approach to regularisation along with the other questions set in the Green Paper? Could the application of regularisation programmes be subject to the system of 'open coordination'? Or is the Commission hinting that the existence of regularisation programmes is a consequence of the failure of national return policies? Could it not be asked instead whether the existence of regularisation programmes is instead, or also partly, a consequence of an overly restrictive national policy on legal migration?

The discussion in section 2.4 does not mention the right to human dignity, as protected in some national constitutions, the EU Charter of Fundamental Rights and the general principles of Community law (Cases C-13/94 and C-377/98). This right could be relevant to the status and detention and return conditions of irregular migrants.

Section 2.5 mentions the idea of 'forms of support' to accompany readmission. It is striking that the Council's Action Plan dropped any reference to aid accompanying readmission, as noted in the attached Statewatch briefing.

Part II: Harmonisation of law

Common Standards

The discussion of common standards in s. 3.1 says nothing about the legal status of persons while awaiting removal, as regards access to employment and benefits. In particular, it says nothing about the obligation to arrange for some form of regular status after a lengthy period during which removal is practically or legally impossible. An ongoing legal limbo of that kind without any significant clarification of the migrant's legal status is arguably a breach of Article 3 ECHR and the right to human dignity.

As regards the Commission's question on definitions, as noted above there is a lack of adequate reference to human rights limitations on removal in these definitions.

As regards section 3.1.1 on ending of legal residence, it may be questioned whether it is appropriate to put in place mechanisms ensuring that irregular residence in one Member State must mean lack of regular residence in all Member States, when there is not yet any agreement on a corresponding principle for legal residents of the EU, even for long-term residents, ensuring that legal residence and status can be transferred from one Member State to another.

The Commission's outline of the grounds for applying expulsion measures fails to mention several elements of Directive 2001/40 on mutual recognition of expulsion decisions: the exclusion of family members of EU citizens, the limitation of scope as regards cases covered by the Dublin Convention, the obligation for the second Member State to ensure human rights protection, and the requirement to provide for a procedure to object to expulsion in the second Member State. None of these safeguards should be weakened in an expulsion directive; in fact there are strong arguments to strengthen these elements.

The grounds for expulsion in Directive 2001/40 are questionable, as they are taken from Article 96 of the Schengen Convention, which largely applies to a ban on entry into the Schengen territory or refusal to issue a visa. It is arguable that the threshold for expelling a person from a territory should be higher than the threshold for refusing entry to that territory, at least where the would-be entrant lacks an existing link with the territory (as a prior resident, for instance) or a protection need there. So any grounds for mandatory expulsion set out in an expulsion directive should be higher than those applying in Directive 2001/40, limited to cases of conviction for a lengthy criminal sentence and (with procedural protection) serious threats to national security in the absence of such a conviction. Directive 2001/40 should be amended to correspond with this. It should be specified that these mandatory grounds are exhaustive.

As for the groups with special protection, family members of migrant EU citizens cannot be regulated by a Title IV measure, and must therefore only be regulated by the rules applicable to migrant EU citizens. The proposed Directive on family reunion would extend this protection to the family members of nationals of a Member State who have not moved within the EU. So both categories of person must be excluded from the scope of any future Directive. Also, EEA and Swiss citizens and their family members must be excluded because of the Community agreements with those countries guaranteeing free movement of persons. Any persons with protection under other treaties agreed by the Community (with Turkey and Central & Eastern Europe, for instance) or by the Member States must also have the benefit of any higher protection extended by those treaties.

The Commission's definition of long-term residents only covers such persons as defined by a proposed Community directive; this concept should also include any more generous national definition of long-term residents, as such a definition could still apply as specified in the proposed Directive.

For refugees and persons with international protection, the Commission makes the disturbing suggestion that 'such persons may only be removed for grave reasons of public security and public order'. In fact, it is clear from judgments of the European Court of Human Rights such as Chahal v UK and Ahmed v Austria that the protection against expulsion to state presenting a real risk of treatment prohibited by Article 3 ECHR is absolute. Unless the Commission meant only to refer to the possibility of removal of such persons to safe states (in which case it should have clarified its meaning), the Communication shows an unfortunate ignorance of, or an illicit attempt to overturn, a firmly established and well-known principle of human rights law. Obviously any future Directive that purported to limit its scope in the way that the Commission suggests would be manifestly illegal for breach of the human rights protected by the general principles of Community law. Moreover, there is a strong argument that the Commission and Council would be liable for damages for such an obvious and grave breach of such principles.

The special protection suggested for persons born in a Member State should also apply to those who have lived there from a young age, on the grounds that in that case the Member State of residence is fundamentally responsible for their upbringing.

Also the Commission makes no reference to proposed protection against expulsion in its proposed Directives on family reunion and migration for employment or self-employment. Any higher protection agreed by these Directives should also be protected from the effect of any general directive on grounds for expulsion. In fact, since it seems likely that illegal immigration measures will be adopted by qualified majority vote from 1 May 2004 while legal migration measures will not be, it is particularly important to guarantee that a qualified majority vote does not undermine the protection agreed unanimously.

Any directive dealing with this subject has to be limited by a specific reference to established family and private life in accordance with the case law on Article 8 ECHR, not just to the vague test of 'hardship' referred to by the Commission.

More broadly, it is questionable whether work should proceed in these areas without prior agreement on proposals concerning legal migration and protection, particularly subsidiary protection. Otherwise there is a risk of agreeing a fait accompli as regards grounds for expulsion by means of discussions in the Council working group on expulsion, made up of specialists on the technical aspects of removal whose jobs are not directly connected with the importance of securing high standards for legal migrants and persons with protection needs. Also the procedural protection for expulsion of rejected asylum-seekers and persons seeking other protection is inevitably closely connected with the procedures for examining an application.

The discussion of the pre-conditions for ending legal residence in s. 3.1.2.2 takes no account of persons who apply for extension of legal residence and are still waiting for a decision from the national authorities--which often do not process such applications expeditiously. It would be preferable to set out the grounds for application of this principle exhaustively and precisely; the idea of losing residence status on the vague ground of 'other reasons of indispensable administrative orderliness' as set out by the Commission is not acceptable.
More broadly, the Commission does not mention that human rights protections and other restrictions against explosion for specified groups of persons should equally apply to the conditions for ending legal residence listed here. In fact, where human rights are at issue, the grounds for removing residence status in the legislation must be precise enough to satisfy the 'prescribed by law' requirement which any measure restricting human rights must meet (where the right in question is not absolute).

A suspensive effect against a removal order in all cases, not just the migration cases, would be essential, as suggested by the Court of Human Rights in the recent judgments in Conka v Belgium and Jabari v Turkey.

Furthermore, any Community act on expulsion must make reference to the ban on collective expulsion set out in several international instruments and the EU Charter of Fundamental Rights, plus the case law of the Human Rights Court on this concept.

Other issues

Any Community measure on detention (and alternatives to detention) must be based on the highest standards applicable in Member States and expressly apply in accordance with the case law of the European Court of Human Rights on detention.

As for removal, again any Community measure must be based on the highest standards applicable in Member States. A final safeguard against detention to a particular state, on grounds of health of family considerations or as regards conditions of removal must be provided for, or there is a risk of breach of Article 3 ECHR or the right to human dignity. It must logically have suspensive effect. Any common assessment of the safety of countries should also be subject to challenge and regular review, and agreed transparently so that groups with evidence that a particular state is unsafe can submit that evidence before the decision is taken.

As for mutual recognition, Directive 2001/40 is already questionable in light of the differences in national law. There should be no further steps on mutual recognition in the absence of harmonisation on this matter, and on protection issues, at the highest standards prevailing in Member States. In any event, the decision to remove someone from the second Member State should always be subject to a review on human rights and other grounds, in particular because the situation of the irregular migrant or the country in which he or she will be returned to may have changed since the prior decision was taken.

Any rules regarding proof of exit must be subject to data protection safeguards. Restrictions on new applications for entry or visas are questionable where human rights or protection needs are concerned. As for the Schengen Information System, the grounds and procedure for listing someone as inadmissible pursuant to Article 96 of the Schengen Convention need to be reviewed to increase procedural fairness and secure human rights guarantees, as set out in a Justice report on the Schengen Information System (SIS) and ILPA/MPG proposals for a Directive on EU border control.

In any event, no penalties regarding new applications following any form of prior illegal entry or residence can be imposed upon persons from Europe Agreement countries who subsequently apply to enter and set up businesses, according to the case law of the Court of Justice.

As for readmission among Member States, any rules should not apply to 'all' illegal residents. In particular, they should not apply to persons with an established or possible protection need, as long as there is still no harmonisation of these matters at the highest standard applicable in the Member States. However, in other cases, readmission between Member States may be preferable to removal to third states, particularly because a particular Member State may be in the best position to examine a person's situation before any order expelling that person from the entire EU. But as with the Dublin Convention, any criteria that takes little or no account of differences in human rights standards between Member States or the migrant's intentions and interests could well be infeasible in practice.

Any rules on readmission among Member States should also be subject to the same procedural guarantees as regards challenges, detention and transit conditions and other matters as are other removals.

As for operational cooperation, it is important to ensure that figures 'shared between Member States' are publicly available, to allow for public scrutiny of the scale of the issue. Any visa identification system should be subject to full guarantees for data protection, as regards matters such as access, correction and deletion of the data. Immigration liaison officers have apparently in practice played a role in preventing the movement of asylum-seekers; any Community measure must specify that they are prohibited from engaging in such behaviour. Any information exchange on concrete measures should also be made publicly accessible, subject to data protection rules.

As for return programmes, the details set out by the Commission are rather vague. No statistics or independent review is referred to. It is questionable whether the Commission's experience could easily be transposed to forced return as well as non-asylum situations. For the reasons set out above, a European Return Programme could not cover voluntary return of legal migrants, in the absence of Community powers to address this issue.

Part III: Readmission agreements

It is unfortunate, for the reasons set out in the main text, that human rights protection does not seem to be a criterion for agreeing a readmission agreement. There is no cross-reference to the test for assessing 'safe third countries' in the proposed Directive on asylum procedures (in any event, this test should be improved). Also, the test of 'immigration pressure on the EU' does not take account of possible authorised or desirable migration flows.

As for complementarity with other external policies, it is not clear whether the Commission envisions a positive or negative connection. Would there be more aid or trade concessions, or rather a reduction in existing benefits or concessions? There could be difficulties applying these policies in practice, as the economy in any third state denied extra EU benefits or facing EU penalties because of its failure to cooperate might suffer as a result, causing greater migration flows. Similarly those states not presently a source of migration flows, and therefore not eligible for any extra benefits or concessions, could suffer by comparison with those states which are a source of flows and receive extra benefits for cooperating; as a result the former could ultimately become a source of migration flows as their economy deteriorated.

As for transit through third countries, like transit through EU Member States, identical high standards regarding the personal safety and dignity of persons must apply.

Any removal to a third state other than the country of origin willing to admit an irregular migrant should only take place following an initial and ongoing assessment of the human rights situation in that country, in particular as regards whether that state would fully guarantee non-refoulement for any person sent there. Also the particular situation of the person should be sent there must also be examined.

Statewatch,
24 April 2002

Appendix: Statewatch Briefing:
Negotiating the EU Action Plan on Illegal Immigration

Background

The Commission's discussion paper on illegal immigration of 15 November 2001 (COM (2001) 672) suggested that the Council consider adopting an Action Plan based on the points raised in the Commission Communication. Subsequently, the Laeken European Council in December 2001 agreed that an Action Plan on this topic should be agreed.

The Council working group on migration and expulsion discussed the Commission's communication at its meeting of 16 January 2002 (Council doc. 5182/02, 25 Jan. 2002). In the meantime, the Spanish Council Presidency had proposed the text of an Action Plan for adoption by the Council (Council doc. 5398/02, 16 Jan. 2002). This draft was then discussed by the Council's Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), and four subsequent drafts were issued before adoption of the final Action Plan by the Council on 28 February 2002 (Council docs. 5398/1/02, 1 Feb. 2002; 5398/2/02, 15 Feb. 2002; 6621/02, 26 Feb. 2002; and the final Plan, 6621/1/02, 27 Feb. 2002).

Transparency and Democracy

The Council did not wait for the European Parliament to respond to the Commission's Communication before adopting its Action Plan. Moreover, no draft of the Action Plan was made available to the public on the Council's register of documents before agreement on the draft plan. The first and second drafts of the plan were never listed on the Council register of documents, even though they were obviously very significant documents which were circulated to all Member States' delegations, and the subsequent versions (including the final version) were only released to the public on 14 March 2002, two weeks after the plan was adopted, following requests for access sent to the Council by Statewatch and researchers. The final version has still not been published in the EU Official Journal or placed online anywhere besides the Council register of documents, so many persons interested in the Plan will have difficulty finding it.

The Content of the Plan

The first draft of the Action Plan submitted by the Council Presidency was virtually identical word-for-word to the Commission Communication. A number of changes were then made in the second and third drafts in particular, with relatively minor changes then made to the fourth draft and no apparent changes from the fourth draft to the final version. However, the final version is still identical to the Commission paper in a number of respects. The main changes in the final Action Plan as compared to the Commission communication (besides renumbering the sections) are as follows:

Part I (analysing the issue):

- deletion of the references to resettlement of asylum-seekers from outside the EU;
- deletion of the reference to supporting the refugee determination system outside the EU;
- deletion of the prospect of joint screening of consular posts; and
- addition of a reference to evaluation of application of the Schengen acquis (although the reference in one draft to the Schengen evaluation working party, which competes with the Commission as regards enforcement of EC law, is not in the final text).

Part II (Action Plan):

- shortening of most of the 'action points' listed by the Commission (the points appearing in boxes in the Communication);

Visa policy (Part II.A of Action Plan; point 4.1 of Communication):

- addition of a reference to annual review of the common visa list;
- reference to inclusion of 'biometric data' in residence permits;
- reference to a possible 'central register of aliens';
- agreement that the planned EU visa identification database should also cover visas applied for or refused; and
- inclusion of a specific reference to the pilot project of a joint consular operation in Pristina

Statistics (Part II.B of Action Plan; point 4.2 of Communication):

- deletion of an express reference to a possible migration observatory (the text on this point changed frequently in the various drafts)

Pre-frontier measures (Part II.C of Action Plan; point 4.3 of Communication):

- references added to pre-frontier boarding checks (as carried out by the UK in Prague);
- reference to High-Level Working Group added; and
- funding regarding reception centres for asylum-seekers and corruption (presumably in relation to migration controls) added to the list of measures that might be supported outside the EU

Border measures (Part II.D of Action Plan; point 4.4 of Communication):

- addition of paragraphs concerning external border controls;
- a new sub-section on sea borders (II.D.III);
- a new reference to the European Police College; and
- more qualified comments on the possible creation of a European border guard

Technical support (point 4.5 of the Communication):

- this entire section was deleted as from the first draft of the Action Plan, although a brief mention of technical support was later inserted during discussions (see para. 67 of the final Plan)

Readmission and return (Part II.E of Action Plan; point 5 of Communication):

- the amendments to this section are the most comprehensive;
- a reference to considering the issue separately in more detail, following the Green Paper which the Commission should present as a matter of 'urgency' has been added;
- the policy is to be based on two elements (common principles and common measures), not three (including common standards) as suggested by the Commission;
- the reference to 'exit controls' has been deleted;
- a reference to a requirement to leave once persons have no legal status allowing them to stay has been added;
- instead of taking into account the 'political and human rights situation' of a third country before negotiating a readmission agreement, the EU should take into account 'the interests of the European Union and the Member States';
- further readmission agreements need not wait upon the conclusion of the present negotiations and evaluation of their results, as proposed by the Commission;
- the identification in the third draft of China, Turkey, Ukraine, Albania, Moldova and Romania as candidates for the next readmission agreements was dropped;
- the reference to including readmission clauses in all future cooperation or association agreements was dropped;
- a reference to an obligation to readmit persons besides a state's own nationals was added;
- the reference to 'targeted technical assistance' for third states has been dropped;
- the reference to regulating readmission between Member States has been dropped; and
- the prospect of 'common standards' is more tentative

Europol (Part II.F of Action Plan (labelled Part II.C inaccurately); point 4.6 of Communication):

- no significant changes from Commission proposal

Penalties (Part II.G of Action Plan; point 4.7 of Communication):

- the conclusions as regards legislation concerning illegal employment are more qualified and tentative, calling only for 'addressing' the issue following a study of national law;
- the proposals regarding removal of the financial advantages gained by employers have been dropped;
- in place of further harmonisation of carriers liability, there is instead an objective of examining implementation of Directive 2001/51 on the issue.

Part III Evaluation

- this did not appear in the Commission communication, but was added during negotiations;

- the Commission is to prepare an annual report with a scoreboard, and take account of the plan when drafting future initiatives submitted to the Council;

Annex

- this did not appear in the Commission communication, but was added during negotiations;

- it is divided into measures to be implemented within one-year (short-term) or three years (medium-term); no 'long-term' measures are listed

Note: the following documents are also relevent:

7640/02, 4.4.02 general follow-up to Action Plan - discussed in Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), 11 April

7861/02, 11.4.02, draft conclusions on illegal immigration; 7525/02, date unknown, and 7990/02, 15.4.02, draft criteria on countries targeted for readmission agreements - former is not listed in Council register of documents, but was on agenda of SCIFA, 11.4.02

Also the agenda of the migration working party of 20 March 2002 contained six topics for discussion regarding implementation of the Action Plan:

- improvement of practical cooperation on expulsion;
- criteria for compensation for expulsion;
- Green Paper on repatriation;
- readmission agreements now under negotiations;
- future readmission agreements;
- standards for transit.

Statewatch Briefing, dated 4 April 2002 (supplemented 24 April 2002)



SEMDOC: Statewatch European Monitoring and Documentation Centre. e-mail: office@statewatch.org