ORIGINAL PUBLISHED ON EU LAW ANALYSIS
by Steve PEERS
Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.
The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.
The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.
However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.
Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.
First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).
Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.
Commission proposals here largely urge more implementation of existing EU rules. The only concrete initiative is a commitment to relaunch the EU’s ‘Smart Borders’ proposals, for an entry-exit system of non-EU nationals, by the start of 2016. But the Commission was planning to do this anyway.
The second phase of EU legislation on asylum is partly applicable already: the ‘qualification Directive’ on the definition and content of refugee and subsidiary protection status should have applied from the end of 2013, and the ‘Dublin III’ rules on asylum-seeker responsibility applied from the start of 2014. The other revised rules, on the ‘Eurodac’ system, asylum-seekers’ reception and asylum procedures, apply from July 2015 already.
The Commission promises to focus on implementation of these laws, by issuing guidance documents and prioritising infringement procedures against Member States which do not apply the law properly. It will also review the Dublin system in 2016, and may suggest proposals to speed up processing in cases involving safe countries of origin.
The Commission supports a legal migration policy based on demographic needs to increase the working-age population in the EU. It will conduct a ‘fitness check’ of existing legislation, and encourages swift agreement on its proposal on students and researchers, which has nearly been agreed by the Council and EP (for analysis of this proposal, seehere). Also, by the end of May, it will review the ‘Blue Card’ legislation on admission of highly-skilled migrants, referring particularly to attracting investors and increasing mobility between Member States (on implementation of the current law and the issues for reform, see here).
The Commission also suggests a new initiative, to adopt rules on the provision of services by non-EU citizens. There are already provisions on this issue in EU free-trade agreements, but the Commission wants standard rules for all non-EU citizens. An important point here is that these rules should at least in part apply to all Member States, since they concern international trade, an exclusive EU competence which is not subject to any opt-outs. Arguably that exclusive competence applies to market access issues as distinct from the related immigration rules, where opt-outs should still apply, but this may need to be clarified.
Finally, the Commission refers to visa policy, namely its existing proposal to amend the EU visa code and its pre-existing plan to review the list of countries whose nationals require a visa. It also suggests giving a modest amount of extra cash to third countries as regards migration management.
Without offering a data, the Commission outlines longer-term objectives in three areas. As regards asylum, it suggests that there could be a common code of EU asylum law, mutual recognition of asylum decisions, and a common decision-making process. It is not clear if the latter would involve the Commission or another EU body making asylum decisions, and/or a common court reviewing asylum appeals (following the model of the EU’s planned patent court).
Secondly, as regards border control, the Commission reiterates long-held goals of a common EU border guard, or at least a common coastguard.
Finally, as regards legal migration, the Commission suggests an EU-wide expression of interest system, so that people are applying to all Member States for a job, not just individual States.
The Treaties refer to a ‘common’ EU policy on immigration, asylum and border control. But the Commission’s proposed agenda does not start from that final objective and ask itself what is necessary for the EU to achieve it. Rather it starts from the status quo and asks what incremental changes need to be made to it to address specific issues.
On the immediate question of addressing the migrant crisis, the strategy paper essentially implements what EU countries already agreed, apart from the relocation and resettlement proposals. The relocation proposals in particular are probably politically unrealistic, given that Member States over the years have repeatedly refused to adopt binding rules on this issue.
The resettlement proposals are less unreal, since the Commission plans to start with a non-binding measure backed up by extra EU money, which should attract Member States to offer resettlement opportunities. Only if that does not work would the Commission take the unrealistic step of proposing binding rules. This part of the plan is particularly welcome, since it would reduce the number of migrants in need of protection who undertake the unsafe journey to the EU in the first place. However, the numbers involved compared to the totals undertaking that journey are likely to be tiny: the Commission proposal of 20,000 a year by 2020 is modest enough (there were over half a million asylum applications in the EU last year) but is unlikely to be agreed by Member States.
On smuggling legislation, more could be done to exempt humanitarian activities clearly from the rules, but changing the law alone will not stop smugglers. On the other hand there are many legal, political and practical problems facing the EU’s plan to destroy migrant boats. The plan is opposed by the de facto authorities in Libya – the very people whom the EU has to work with to solve the conflict in Libya in the first place.
The plan as regards returns legislation is to make the current rules work more effectively, by agreeing more readmission treaties and carrying out more removal operations. But coupled with the plan to amend asylum law to fast-track assessment of applications from supposed ‘safe countries of origin’, there is a risk that people will be removed to unsafe countries before their need for protection has been properly assessed.
Also as regards asylum, there is a focus on applying existing rules. In principle, this could lead to a significant increase in the degree of harmonisation between Member States, since the second-phase asylum rules have eliminated a lot of the legal divergences that the earlier phase of EU asylum law provided for. However, it depends on the political will of the Commission, which has promised to enforce EU asylum law many times before – and failed to do so every time. There’s no detail of how the enhanced focus on infringement proceedings will work, and until there is, this looks like a promise the Commission is making with its fingers crossed behind its back.
As regards legal migration, more admission of highly-skilled migrants and service providers in areas of economic need would be useful, and admission of tourists, researchers and students could boost the EU economy. Some of the measures to this end are already under discussion. But the Commission makes a fairly weak commitment as regards the enforcement of other EU legislation on legal migration, given that (for instance) many non-EU citizens face barriers to family reunion, and the Commission reported in 2011 that EU laws on long-term residents are not properly applied by Member States.
Finally, the Commission’s long-term plans are interesting but plans along these lines (particularly as regards border guards) have been rejected before by Member States. A particular disappointment here is the failure to suggest early adoption of rules on the transfer of protection of refugees who move between Member States, given that some refugees already have the right to move between EU countries and there is an existing Council of Europe treaty setting out rules on this issue that the EU could use as a template (see the ECRE report on this issue).
On the whole then, the Commission strategy paper is largely a repackaging of things which the EU is already committed to doing or already negotiating, or which are already in place. It shouldn’t be necessary to adopt plans to enforce rules which are already the law, and the intention to do so simply exposes the previous failings of the Commission on this score. It remains to be seen if issuing ‘guidance documents’ has any useful effect in practice (the Commission should commit itself to an independent review of this), and the promises relating to infringement proceedings mean nothing until the Commission tells us what this means, and regularly and openly reports on its practice to this end. The plans for further legislation in the near future are essentially modest, but in places (fast-track asylum assessment and expulsions, directly to more countries of origin) raise serious potential human rights concerns. And the strategy paper concludes with the legal equivalent of a flock of flying pigs.
All this will ultimately lead to another series of modest steps forward toward a common EU policy on borders, immigration and asylum. But it falls short of the significant changes that could be made if there were enough political will in the Commission and the Member States.