Immigration and asylum in the EU after 11 September 2001
01 September 2002
What effect did the events of 11 September 2001 have on EU immigration and asylum law? The answer can be found by examining in turn the fate of EU legislative proposals in this area and the parallel development of EU borders and expulsion policy over the last year.
EU legislative proposals
The new focus on security following the events of 11 September first of all derailed discussions on proposed EC immigration and asylum law for some months. The Belgian Presidency of the Council soon stopped holding discussions on proposals for directives on family reunion and asylum procedures, held only one meeting on the issue of responsibility for asylum seekers (a proposal to replace the Dublin Convention), and never even began discussions on outstanding proposals concerning the definition of 'refugee' and admission of non-EU citizens to take up employment or start businesses. Instead, the Belgian Presidency convinced the Laeken European Council to avoid the issue for months, instead asking the Commission to prepare revised texts of several measures the following April. It fell to the following Spanish Presidency of the Council in the first half of 2002 to make a greater effort to agree legislation.
As for the substance of legislation, September 11 prompted a reconsideration of some important provisions of these proposals. A paper from the Commission in December 2001, addressing the relationship between asylum and security issues, suggested that there should be greater ability to extradite asylum seekers, thus terminating the asylum claim or suspending it. It also argued that the case law of the European Court of Human Rights protecting alleged terrorists from expulsion to face a real risk of torture or other inhuman or degrading treatment would be reconsidered--indicating a flagrant disregard for established European human rights law.
The Commission's paper also examined issues besides asylum law, arguing that the proposed level of protection for long-term resident non-EU citizens in the EU against expulsion should be weakened even below the level in the Commission's outstanding proposal on this subject--although the proposed standards already fell below those applying to migrant EU citizens. Discussions on this proposal have since more than taken on board the Commission's proposed weakening of its own text. In fact, even the discussions on a proposed Directive on the rights of EU citizens and their family members have been affected by the 'September 11 effect', with Member States resisting the Commission proposal to protect EU citizens and their family members from expulsion on any grounds once they have lived in another Member State for more than four years.
In June 2002, the Commission released a revised version of its proposed directive on asylum procedures. Along with a general substantial lowering of the already limited procedural rights for asylum-seekers in the original proposal, the Commission made specific suggestions for changes making it easy to extradite asylum-seekers during the asylum determination process. The problem with this is that such trials could take place before a determination was made on each asylum-seeker's application for asylum. If the asylum-seeker is acquitted of terrorist accusations--as a large number of those accused of such offences since September 11 have been--how can the asylum-seeker's return to resume consideration of the application for asylum be assured?
EU expulsion and borders policy
Another striking development of EU policy since September 11 has been the focus on securing the borders of the EU and ensuring the removal of migrants who have crossed it. This increased focus on security is doubtless an indirect result of September 11, with many of the relevant policy papers referring expressly to the 'fight against terrorism'. A new border control plan was agreed in a matter of weeks in spring 2002. It will be spearheaded by a new unaccountable body: the chiefs of EU border