Nature and causes of the developments in the
immigration field
from Maastricht to Amsterdam.
By Olivier Charnoz
Immigration involves matters such as national identity, sovereignty, as well as affecting economic, social and demographic objectives. This probably why the emergence of a common policy has been so slow.
We'll give a brief overview of the matter before Maastricht, in order to understand why Maastricht is turn. Then we'll analyse the flaws of co-operation under Maastricht and the reform proposals made in 1996 by various actors.
Then we'll study the actual Amsterdam reform. Finally we'll draw some reflection upon the driving force behind integration in immigration matters.
· International collaboration has emerged in many different forums in the post-war period. The most important are :
- the OECD, with its continuous reporting system (SOPEMI)
- and the Council of Europe, with the setting up of international conventions safeguarding immigrants' rights.
· 1957 : The Rome Treaty encompasses the fundamental goal of free circulation of factors of production, among which are workers. However, no real effort to implement is made up an till the 80's.
·
The perspective of the Single European Act in the mid 80's (to be signed in
1987) was the key factor. The SEA was a commitment to a true single market from
which 'all physical barriers' would be removed by 1 January 1993. The
foreseeable implications brought a case for an extended co-operation between MS
to control immigration from third countries, combat terrorism and cross-border
crime.
Þ In this context, emerged an informal co-operation between MS, trough meetings of ministers. Informal means outside the EC structures.
· In October 1986, the Minister of Home Affairs decided to create "Ad Hoc Group on Immigration", as a first attempt to co-ordinate national asylum and immigration policy. This forum operated outside the scrutiny of the Parliament, Commission and ECJ.
· 1985 : The Benelux, France and Germany signed the Shengen Agreement, whose aim is the complete remove of barriers and control. As in the Ad Hoc Committee, co-operation is purely intergovernmental and outside the framework of the EC.
· The agreement allows for:
- Common rules for control at external borders of the Shengen area
- Adjustment for condition of border crossing and visa policy
- Sanctions against air companies which carry people without proper documents
- Exchange of information on asylum-seekers
· The effectiveness of
Shengen is far from perfection. By mid-1996, France was still refusing to
remove border checks with Benelux.
· In June 1990, the Dublin Convention was signed preventing multiple asylum application. Immigrants have to apply in the MS where they first arrive. As a mere convention, it has no direct effect and therefore takes a long time to be implemented.
·
An External Border Convention was proposed but has not been signed.
· No 'direct effect'
· Therefore poor implementation
· Pure intergovernmental process entailed a very difficult decision-making process
· Secrecy, non accountability, no public visibility
· The Maastricht Treaty revision introduced for the first time Immigration as an explicit policy area of the EU. It replaced all earlier agreements concerning asylum and immigration policy.
· It is worth noting that, the system of pillars was meant to preserve the intergovernmental nature of sensitive policy areas, as immigration policy.
· Maastricht does not incorporate the Shengen Agreement into the EU framework. (Article K.7 makes this possible, as we shall see) Þ refuses a multi-speed and fragmented EU, but allow multi-speed integration in this field.
· The third pillar is established by Title VI under the name of " co-operation in the field of Justice an Home Affairs ". The related Articles are K1 to K9.
· Article K.1 gives a list of 'common interests' centred on :
- immigration matters : asylum policy, border control, immigration policy regarding nationals of third countries, visa
- policing matters: police co-operation, fight against drug traffic, custom co-operation, judicial co-operation in criminal and civil matters.
· Article K.2 refers to previous international legal texts as the European Convention for the Protection of Human Rights and Fundamental Freedoms (Nov 1950) and the Convention on the Status of Refugees (Jul 1951).
· Article K.3 :
- Asks for administrative co-operation in the aforementioned areas.
- In the immigration field, it gives a shared right of initiative to the Commission and the Council.
- The council can unanimously adopt joint positions, joint actions, and conventions. Implementing procedure are adopted by QMV.
· Article K.4 : creates a Co-ordinating Committee that gives opinions to the Council and prepare its discussions. (The K.4 Committee is part of the COREPER)
· Article K.5 : legally binds MS to defend the common positions adopted.
· Article K.6 : gives a right to the EP to be informed and consulted on a regular basis.
· Article K.7 : authorise two or more MS to develop a closer co-operation. Opens up the possibility of variable geometry and multi-speed integration (implicitly refers to Shengen)although outside the EU. The EU will not be fragmented in this field.
· Article K.8 : says that administrative expenditures related to this field shall be borne by the EC budget.
· Article K.9 : contains the 'passerelle' procedure. The council, acting unanimously, may decide to transfer areas of competence from the third pillar to the first one, that is, from a rule of unanimity to QMV.
The Maastricht revision produced
some results towards a common immigration policy:
· Creation of Information Agencies (CIREA and CIRIFI) that centrally monitor movements within the EU and makes data available trough a computer network.
· Two Regulations on a Common Visa Policy have been passed on the first pillar, trough the passerelle article K.9.
- Reg 1683/95 establishing a model visa
- Reg 2317/95 on countries requiring visa
The resulting policy is quite liberal compared to the Shengen Agreement: only 101 countries need a visa compared to the 129 of the Shengen's list.
· Five Joint Actions concerning immigration have been taken till Amsterdam:
- decision 94-795 on group travel by school children from third countries
- a decision on Airport Transit Arrangement
- a decision on burden-sharing with regard to displaced persons
- uniform format for residence permits
- one to combat trafficking in human beings and sexual exploitation of children
· One Joint Decision has been adopted in 1996 on a harmonised definition of the term refugee used in the Geneva Convention.
· A plethora of Resolutions, Recommendations and Conclusions, focusing on Asylum Policy, Expulsion and Illegality matters, and Admission and Family reunification.
All this instruments are an attempt at approximation of national policies, and cover the whole spectrum of immigration and residence control. But they suffer from a wide range of flaws:
· The status of the legal output is unclear: Resolutions, Opinions, and Conclusions are non-binding on Members States. In some cases they entail obligation, in other they only express intentions. Moreover, conventions have no direct effect.
· All of these resolutions fail to achieve any degree of harmonisation of national practices. A good example is the set of rules on family reunification. Indeed they are almost useless, since they allow for crucial national variation.
· Moreover, no real enforcement mechanism. Implementation is left, as usual, to Members States.
· Intergovernmental nature of the decision-making process brings into it lots of actors, who each have veto power.
· Resolutions,
Recommendations and Conclusions are unpublished and discussed in opaque
committees.
· The Parliament is left out of the process.
· The ECJ has no jurisdiction in this area, except insofar as ruling on compatibility with Community law.
· Secrecy of the K.4 Committee
· The all legal production of the Council assumes that illegal immigrants do not have any rights. This goes against:
- the 1990 UN Convention on the protection of the Rights of Migrant Worker and their Families
- the 1977 Convention on the Legal Status of legal workers, set up by the Council of Europe.
· The European Commission recommended that Members States should sign and comply with both.
· As many NGOs argued, the third pillar tends to link immigration with crime, and does not address the issue of assimilation. Up until the very recent decision (in 1997) to establish a European monitoring Centre for Racism and Xenophobia, the EU had only produced a unique and ineffective resolution concerning assimilation of long-term residents (passed in 1996).
Much criticism came therefore from everywhere against the secrecy, unaccountability and general lack of effectiveness of the policy process in immigration matters under the third pillar. By 1996, there was a virtual unanimity over the need for a reform.
All over 1995, the various EU bodies published opinions with a view to the 1996 IGC.
· The Committee on civil
Liberties and Internal Affairs considered as a top priority to define the rights
and obligations of citizens of third countries in the Union and encourage
their integration
· The EP wanted to democratise the decision-making process by transferring asylum and immigration policy to the first pillar, as authorised by the 'passerelle' procedure (article K.9)
· Wants to enhance Commission's rights to initiative and implementation.
· Wants to promote QMV at the expense of the unanimity rule.
· Calls for judicial review by the ECJ
· a more involved EP, and full right of initiative for itself.
· A communautarisation of the Third Pillar would be the best way to do all this changes in one go.
· In 1994, the Corfu
European Council established a Reflection Group in order to prepare the 1996
IGC. This
reflection group saw the failure of the third pillar as due to a lack of
objective, a lack of time-tabling, a lack of clear legal framework for
citizens' rights, an over complex
working structures which impede decision-making
· This Reflection Group also proposed communautarisation.
· From January to March 1996, was conducted the largest survey ever in Europe, focusing on public opinion over development of the EU. A total of 65000 people in 15 Member States were questioned.
· 59.4 percent of European People wish to see decisions on immigration taken jointly by the European Union.
· The populations of nine EU member States wish so. Italy with 78.8%, the Netherlands 68.4%, Greece 67.1% and Spain 63.6% are the most strongly in favour. France, Germany, Ireland, Portugal, Belgium fall into this category.
· Luxembourg occupies the middle ground with an opinion almost equally divided
· The group of countries favouring national action consists of Finland with 69.6%, Sweden 59.9%, Austria 58.9%, Denmark 56%, and the United Kingdom with 55.1%.
· As regard asylum policy, the figures are bout the same. Nine countries in favour, one divided one the question (Portugal) and the same five opposing countries (which had preferred immigration policy to be left to their respective national governments) Sweden with 64.4%, Austria 59.3%, Denmark 58.7%, Finland 57.8% and the United Kingdom 50%.
· Positions of Member States clearly appeared during the 1996 IGC. There was a quasi unanimity among them over the concern that immigration policy should be transferred to the first pillar.
· The advantages of communautarisation most referred to were:
- effectiveness of decisions
- compulsority of decisions
- democratic and judicial control
· It is particularly interesting to note than the governments of Finland, Sweden, Austria, supported this communautarisation, even though their public opinion were predominantly against.
· Only Denmark and the UK's governments followed their public opinions by resisting this integrative move.
· The Amsterdam Treaty of October 1997 transfers important areas from the third to the first pillar of the Union : measures related to
- external border control
- asylum
- immigration
- rights of third country nationals
- judicial co-operation in civil matters
· This is a fundamental change, insofar as:
- the third pillar is an intergovernmental framework, where the Member States are actors
- the first pillar is far more supranational. The Community is the first actor. Opens up the possibility of more QMV, judicial and parliamentary control.
· Unlike under the old third pillar, immigration and asylum decisions by the Community will be binding, and also capable of having direct effect within the national legal orders.
· The new third pillar will be confined to police and judicial co-operation in criminal matters.
· Immigration and asylum policy is not transferred to the first pillar as a whole. Neither measures on expulsion and deportation nor measures relating to the prevention of migration movements are explicitly mentioned.
· Article 63 EC provides that measures adopted by the Council pursuant to immigration policy shall not prevent any Member State from maintaining or introducing national provisions which are compatible with the Amsterdam Treaty.
Þ this clause reflects a concession to those Member States who were reluctant to give up part of their national sovereignty in immigration and asylum policy.
Þ this can be seen as an application of the general principle of subsidiarity.
· Even more ambiguous, is the clause contained in Article 64 whereby the new provisions shall not affect the exercise incumbent upon Member States with regard to the maintenance of law and order in the safeguarding of internal security".
· The Council is given legislative power, since its decisions, unlike under Maastricht, create Community law.
· Within a period of five year after the entry into force of the Treaty, the Council is obliged to pass a set of measures which are clearly specified in the first three article 73i, j, k.. Many of them have already been enacted either by the Dublin or by the Shengen implementation Conventions.
· During the transitional period the council still acts unanimously.
· After this period, the Council (acting unanimously) will take a decision about which areas should be placed under QMV.
· During the five year transitional period, the Commission will have to share the right of initiative with Member States --just as under Maastricht.
· After this period, it will enjoy an exclusive right of initiative.
· The Amsterdam Treaty introduces the Parliament, in the decision making process of immigration matters, trough the consultation procedures.
· The consultation procedure only improves the position of the EP because it starts from scratch. The EP is at its weakest with this procedure.
· Therefore this improvement in parliamentary control is not sufficient, given the dramatic change in the legal nature of Council's decisions - which will have direct effect in national law.
· Hopefully, parliamentary control will increase after the transitional period.
· The role of the ECJ is strengthened.
· Nonetheless, a set a special clauses limit the Court's jurisdiction.
· Article 68 : A court may request a preliminary ruling only if there is no judicial remedy under national law against its decisions. Therefore only the highest court may request a preliminary ruling. The huge network of lower courts, which had strengthen the ECJ in the past, is excluded.
· Article 62 : excludes the possibility for the ECJ to rule on any measure relating to "the maintenance of lawn and order and the safeguarding of internal security".
· The conclusion is that the judicial protection system of the Treaty is not sufficient, especially because immigration matters involve human rights matters.
· As we have seen, the Maastricht treaty (by its Article K.7) authorised a closer co-operation of less than 15 Member States, but outside the framework of the EU.
· The most important example of had been the Shengen agreement, signed by all the Member States except the UK and Ireland.
· The Amsterdam Treaty introduces flexibility clauses in order to integrate this agreement in the framework of the EU. This is primarily in order to :
-
enhance the
"acquis communautaires"
- introduce parliamentary and judicial control
- render more effective the decision-making process.
· The protocol integrating the Shengen acquis includes special provision concerning :
- Iceland and Norway which are associated, even though they do not belong to the EU.
- UK, Ireland, Denmark which opted out
· The opting out of some Member States fundamentally opposed to this communautarisation, was the price necessary to achieve it.
· The opt-out Protocol on UK and Ireland, prevents them from participating in the decision making process and from being bound to comply with the legislation. However, if they wish to do so, they can participate in such or measure.
· This last provision reflect the fact that Ireland was not opposed to communautarisation. Ireland only follows the UK because it wishes to maintain its Common Travel Area.
· The opt-out Protocol of Denmark, contains no such provision. The situation is complicated by the fact that Denmark remains a member of the Shengen area.
· Most of the literature refers to the integration of immigration matters, as a due to a spill over effect connected with the abolition of internal borders and with the Single Market.
· The Commission said during the 1996 IGC that "These problem have become national in scale ; none of them stops at national borders". But this is only because the Single Market and the abolition of internal borders took place.
· This is not to say that governments have played no role. On the contrary they did play the crucial role in setting up Maastricht and Amsterdam, sometimes against their own public opinion.
- governments looked for practical efficiency
- spill-over effect transferred efficiency from the national to the EU level.
· The concern with national sovereignty can however explain the ambiguities we detected in the Amsterdam Treaty.
· The Commission, trough its DG I, took lots of initiatives in this field and pushed hard for a less intergovernmental management.
· The EP argued for accountability and judicial review under the ECJ.
· National ministries increased spontaneously their mutual contacts.
Therefore integration in the field of immigration is nothing symbolical or ideological (brought about by pro-Europe activists), but due to pragmatic problem solving.