07 February 2001
Submission by Statewatch on the Commission's EU Immigration Policy (COM (2000) 757 final) to the House of Lords Select Committee on the European Union, Sub-Committee "E"
COM (2000) 757 full text: European Commission
1. Statewatch welcomes the Commission's initiative to launch a discussion on the overall framework for EU migration policy. However, it is curious that the Commission did not take this initiative somewhat earlier, given that the Treaty of Amsterdam had already been in force for eighteen months when the Communication was issued and that the Tampere European Council had a year beforehand called for the Commission to submit legislative proposals on migration policy as soon as possible.
2. As to the context of the particular issues prompting the Communication, the recognition that 'zero immigration' policies are not sustainable and that future migration policy must take into account demographic and economic factors is very welcome.
3. The Communication mentions 'integration' policy on a number of occasions. If this simply means that the Community and Member States should ensure equal treatment and security of residence for migrants, such a policy is welcome. But it is not welcome if the Commission envisages a policy which would oblige migrants to adopt the majority culture at the expense of their own. At several points, the Communication refers to the benefits which the Community derives from cultural diversity which migrants contribute to; such benefits could not be derived if the Community's policy is to extinguish such diversity by means of an 'assimilation' policy.
Section 2.1: Partnership
4. The EU's 'partnership' policy has to date shown major deficiencies as regards transparency, with little or no chance for the national parliaments, the EP, NGOs or the 'partner' countries to contribute effectively to the Action Plans drawn up by the Council's High-Level Group. Unfortunately, the Commission fails to suggest changes to this approach.
5. The Commission does not provide any evidence for its assertions made in this section about the effect of migration on home communities.
Section 2.2: Protection
6. It is not clear what point the Commission is making here. Does the Commission see any link between asylum policy and migration for other purposes? If so, what is that link? If not, why is this sub-section included in the Communication?
Section 2.3: 'Fair Treatment' for third-country nationals
7. The Commission mentions proposed amendments to Regulation 1408/71 and 1612/68 and proposed directives on service provision by resident third-country nationals, without noting that there has been no real progress in the Council on these proposals or suggesting any way to encourage the discussion. The Committee's inquiry provides an ideal opportunity to question UK civil servants and ministers about the status of these proposals, since the UK has had misgivings about all these proposals. In light of the UK's agreement to the Tampere principles of fair treatment for third-country nationals, what is the justification for continuing to oppose these proposals?
8. Planned proposals concerning the legal status of long-term residents are welcome, but the Commission does not give any indication of their content so there is no effective prospect of using the Communication to discuss the parameters of such policy in detail.
9. Also, planned proposals concerning racism and xenophobia are welcome, although again it would have been helpful to use the Communication to provide a forum for discussion of the potential detail of these proposals. There is no indication of the extent to which such proposals will focus on particular migration issues. It would be preferable if the future proposals make specific reference to combatting and preventing violence against asylum-seekers and other migrants, since such violence obviously stems from racism and xenophobia, and also refer specifically to the need to prevent and combat racism and xenophobia by public authorities, with specific mention of the status of asylum-seekers and the operation of law-enforcement authorities.
10. The Commission refers to the Charter of Fundamental Rights, but as comments from the Commission's Legal Service have pointed out, the Charter is not binding and does not go as far as to create a type of 'civic citizenship' for third-country nationals. Why does the Commission not suggest using its power pursuant to Article 137 EC (which it has had since 1993, but never used) to propose a directive on equal working conditions for all third-country nationals? This would implement an important provision of the Charter. The Commission has never explained why it has never used this power. Such a measure would contribute to anti-racism policy and to fighting social exclusion.
Section 2.4: Management of Migration Flows
11. There is evidence that advertising to would-be migrants risks either ridicule (ie, current Australian advertising featuring large crocodiles and spiders) or having a counter-productive effect (ie, advertisements attempt to deter migrants to Leicester in the 1970s). Recently the Council decided to send letters to countries of migration but the available documents suggest that the letters were to be sent out in the language of the Presidency--Finnish or German at the relevant time. Funds would be better spent on ensuring that information is provided by neutral and independent agencies so that people who are considering moving do so without negative publicity from target countries (which the migrants will obviously discount) or potentially false positive information provided by persons who would profit from transporting or even exploiting them.
12. If there is to be a directive on expulsion standards it should be drafted at the level of the highest standard prevailing in any Member State and with respect for all the applicable international standards, including those agreed only by some Member States (since Member States should not be required or encouraged to lower their standards or breach their international commitments). In this regard, the Commission should oppose the adoption of a directive on mutual recognition of expulsion decisions until Member States' standards have been approximated along these lines.
Section 3.1: Impact of existing policies
13. The Communication only refers to the Geneva Convention as a source of humanitarian admission or stay. What about national rules, the ECHR and the UN Convention Against Torture, and now the EU Charter of Fundamental Rights?
Section 3.2: The New Approach
14. It is disturbing to see that the Commission thinks that migration must be 'balanced' against refugee protection. Why should these two things be balanced and if so, how should that balance be reached? If the Commission means that, if jobs are filled by asylum-seekers or persons with recognised protection status, there is a corresponding reduction in the need to authorise economic migrants, such a view is unexceptional. But the Commission does not state any view on access to employment by asylum-seekers or persons with protection status, or even raise the issue in the Communication (an important omission from the Communication). So it is not clear what the Commission means. It is objectionable to suggest that if there are more economic migrants, the Community should reduce the numbers that it is willing to recognise the protection needs of; and conversely it would be irrational to reduce the numbers of economic migrants, leaving jobs unfilled and deterring investment, purely because of the fluctuations in the number of persons needing protection.
15. As regards the economic exploitation of migrants, it would be welcome if the Commission were to revive aspects of its proposed 1976 directive on illegal migration, particularly regarding irregular migrants' right to full pay and benefits for any work they do for a Community employer. Such a measure would ensure that there is less downward pressure on wages, prevent exploitation of the migrants and ensure that unscrupulous employers paid the full cost of their employees.
Section 3.3: The Framework
16. The Commission suggestions here are very vague, which is unfortunate given the importance of the issue.
17. Again, the discussion of migration for humanitarian purposes should refer to displaced persons needing 'complementary protection'.
18. The note regarding the EC's association agreements is in part legally inaccurate. The agreements referred to all require Member States to grant equal treatment in working conditions regardless of the length of stay of the migrant. The agreements with the CEECs require Member States to give access to employment to any family member of a CEEC worker legally authorised to join the worker; again this right is not subject to the length of stay of the migrant (although of course the decision to authorise family reunion might be partly or wholly related to the length of stay). Also, the CEEC agreements give CEEC nationals the right of establishment, while the EC-Turkey agreement contains standstills on rules concerning workers and establishment. None of these are subject to rules concerning the migrant's length of stay. Nor is the right to equal treatment to social security deriving from the Maghreb agreements and the EC-Turkey agreement. The only aspect of any of these treaties relating to length of stay is access to employment for workers and family members under the EC-Turkey agreement. Therefore the Commission's use of these agreements as a model for 'integration' based on the length of stay is simply wrong, except as regards access to employment. In any event, the Commission fails to mention the European Economic Area treaty and the EC-Switzerland treaty being ratified, which give full access to the EC employment market and all rights of migrant EC nationals without any length of stay requirement. Why not take these treaties as a model?
19. In s. 3.4.1, it is not clear how 'indicative targets' differ in practice from quotas. Surely there is a significant risk that this approach will 'second-guess' labour market needs in the following year? The Commission also fails to mention the importance of the transparency of this process.
20. In s. 3.4.2, the Commission says nothing about the detail of the comparative studies it has commissioned, and makes no move to indicate whether they have been or will be published.
21. The suggestions regarding access to information by would-be migrants, a job-seekers' visa, procedural rights, an 'economic needs' test based on advertising a vacancy for a certain period and expedited access to the labour market by graduates of an EC university are very welcome. However, there is a risk of the latter approach setting up a form of class distinction; there should be similar expedited access for all 'second-generation' migrants who have spent some or all of their education in a Member State.
22. As regards delays in granting employment rights, see the comments at para. 18 above. What exactly would a 'hard core' of rights available immediately consist of?
23. What do the Commission's comments on citizenship mean in practice? What connection does the Commission foresee with the EU Charter of Fundamental Rights?
24. It would be helpful if the Committee used this enquiry to determine the UK government's view on whether at least long-term resident third-country nationals should be able to move between Member States to take up employment, self-employment or study, and whether the UK would opt in to a Title IV measure on that subject. With the increased development of the internal market, many careers require or can be aided by periods spent in different Member States (including periods of study abroad) and so blocking third-country nationals from doing this contributes to social exclusion and indirect discrimination against racial, ethnic and religious minorities within the Community. So if the UK government still objects to residence rights for long-term residents for third-country nationals, how can it justify its position in light of these considerations?
Statewatch submission prepared by Steve Peers, Reader in Law, University of Essex.
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