5. Asylum & refugees rights' policies – Page 10 – European Area of Freedom Security & Justice

Economic challenges and prospects of the refugee influx

THE FULL TEXT OF THE EUROPEAN PARLIAMENT RESEARCH SERVICE IS ACCESSIBLE HERE

SUMMARY
The current refugee influx represents the largest population movement in Europe since World War II. Its size and complexity make it difficult to draw conclusions on the economic challenges and prospects valid for each Member State of the European Union (EU).
Many experts agree that, in the short term, the refugee influx will lead to rising costs, arising from the need to provide food, shelter and first aid. In the longer term, the refugee influx could be positive for the European economy by, for example, addressing the EU’s alarming demographic trends. Depending on their education, skills and willingness to work, refugees might improve the ratio of active workers and also contribute to innovation, entrepreneurship and GDP growth. Regarding the labour market, migrants can fill important niches both in fast-growing and declining sectors of the economy, and contribute to labour-market flexibility.
Refugee, migration and asylum policy is largely under the auspices of the Member States and intergovernmental EU policy-making. The uncontrolled mass arrival of refugees has highlighted the different views in the Member States on migration and immigration, driven by economic, social and cultural divergences and spurred the debate on a new EU migration policy.
According to the European Parliament, the EU and its Member States should target the potential gains from the current influx by, inter alia, successful economic and social integration of the refugees.

The Reform of Frontex: Saving Schengen at Refugees’ Expense?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 16 December 2015)

by Steve Peers

Years ago, shortly before the creation of Frontex (the EU’s border control agency) and the big EU enlargement of 2004, I discussed the future of EU borders policy with a senior German civil servant. Anxious about the forthcoming enlargement of the EU (and, in time, Schengen), his vision was that every Lithuanian or Polish border post would be jointly staffed by a friendly German.

Yesterday’s proposals from the European Commission don’t precisely reproduce that vision – but they do embody the same doubt that Member States (in the south, rather than the east) can be fully trusted to patrol the external border. Given that Frontex has been created in the meantime, it’s the agency itself – flanked by reserves from national border agencies – which would be sent in to help patrol the borders of Member States, albeit only in certain cases.

This is only one of a batch of proposals made yesterday. I’ll sum them all up, but focus on this one, as it’s the most important. Overall, though, the proposals are flawed, in two contradictory ways: they simultaneously seek to do too much in the area of border controls (where the Frontex proposal exceeds EU powers and is politically unprincipled) and too little in the area of asylum (since there is no significant attempt to address humanitarian or protection needs within the EU). In short, they seek to save the Schengen system, at the expense of refugees.

Overview

There’s a Commission communication issued yesterday which tries to sum up all the new proposals. But in an even smaller nutshell, here’s what the Commission has tabled. The flagship proposal is a Regulation which would replace the existing Frontex legislation, creating a new ‘European Border and Coast Guard’ (EBCG) consisting of national border guards plus the agency. This is accompanied by two proposals for minor consequential amendments to the Regulations establishing the EU’s Fisheries Control Agency and Maritime Safety Agency, whose work would be coordinated with the EBCG.

Next, an amendment to the Schengen Borders Code would increase checks at the external borders on EU citizens and, to some extent, non-EU citizens, for security purposes. A fifth proposed Regulation attempts to make expulsion and readmission more effective, by creating a uniform document to be used during removals of irregular migrants to their country of origin.

There are non-binding measures on border control issues too. The Commission has adopted a Handbook for use operating the EU’s ‘Eurosur’ system of maritime surveillance. It has also released its latest regular report on the Schengen system in practice.

In the area of asylum, there’s only one proposal for a binding measure: a Decisionwhich would exempt Sweden from the EU’s system of relocation of asylum-seekers (which I previously discussed here), for a period of one year. There’s a non-binding Commission Recommendation for a voluntary humanitarian admission programme of refugees from Turkey. Finally, there are Commission reports on the operation of the ‘hotspots’ for immigration control in Greece and Italy, and on the application of the recent plan to manage asylum and migration flows coming through the Western Balkans.

The new European Border and Coast Guard

As noted already, the proposal would replace the existing legislation establishing Frontex, which was first adopted in 2004, then amended in 2007 and 2011. (I previously produced a codified text of the Regulation – see here). To compare it with the text of the rules it replaces, see the Annex to the proposal. There would be no change to the separate legislation, adopted in 2014, which regulates Frontex actions as regards maritime surveillance (see my comments on that law here).

It should be emphasised that the legislation would not apply to the UK or Ireland, because they don’t participate fully in Frontex. In fact, according to CJEU case law, they can’t participate fully in Frontex unless they join the Schengen system fully – which is hardly likely, to say the least (it would require a referendum in the UK). However, the current loose cooperation between Frontex, the UK and Ireland would be retained, particularly for joint expulsions.

These new rules would – if agreed – significantly transform the status and role of Frontex. I won’t examine every detail for now (I might come back to the finer points during or at the end of the negotiations). Rather, my focus here is on the key aspects of the proposal. Keep in mind that this proposal is far from a ‘done deal’, since it has to be approved by a qualified majority in the Council (the UK and Ireland don’t have a vote, due to their opt-out) as well as the European Parliament. Already press stories suggest that many Member States oppose some key features of the proposal.

The first key feature of the law is the relationship between Frontex and national border forces. At present, the current Regulation states that ‘the responsibility for the control and surveillance of the external borders lies with the Member States’. Frontex is merely tasked with the ‘coordination’ of national forces.

But the proposed Regulation would, in effect, promote Frontex from the job of tea lady to the role of chief executive officer. The new law would not just upgrade the EU agency itself, but create a ‘European Border and Coast Guard’ consisting of national forces and the Agency. The Agency will adopt an ‘operational and technical strategy for the European integrated border control management’. National authorities then adopt their own strategies, but they must be ‘coherent’ with the Agency’s strategy. To put the strategy into effect, the Agency will not only be ‘reinforcing, assessing and coordinating’ national forces, but also taking control of them when Member States are not able to do so effectively.

The current tasks of Frontex – training, risk analysis, research, operational support, border surveillance, and support for expulsions – would all be retained and considerably enhanced. For instance, Frontex would have powers to send liaison officers to Member States, to check the ‘vulnerability’ of external border controls, to create a ‘return office’, and to gather and analyse more personal data. It would also have powers to send staff to third countries to participate in operations, not just (as at present) liaison officers. It would have more staff and funding, as well as reserve forces from Member States to call upon for border control or joint return operations. Most significantly, it would be able to send forces to an external border, in certain cases, without a Member State’s consent.

Is this power compatible with the limits on the powers of the EU? Article 72 TFEU states that the Justice and Home Affairs (JHA) Title of the Treaty ‘shall not affect the exercises of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’. This Article must apply to border control as well as policing, since there was an equivalent clause in the border controls and immigration Title of the Treaty before it was merged with the policing rules by the Treaty of Lisbon. It obviously does not rob the EU of all power to adopt laws regulating borders, since Article 77 TFEU goes on to confer powers to adopt laws on ‘the checks to which persons crossing external borders are subject’ and which are ‘necessary for the gradual establishment of an integrated management system for external borders’.

But the JHA Title specifically restricts EU powers regarding intelligence agencies, and bans coercive powers for Europol (the EU police agency) and prosecutorial powers for Eurojust (the EU prosecutors’ agency). In my view these restrictions are particular applications of the general rule set out in Article 72, which must mean that while the EU can establish rules on border controls and regulate how Member States’ authorities implement them, it cannot itself replace Member States’ powers of coercion or control, or require Member States to carry out a particular operation. This is consistent with Article 4(2) TEU, which requires the EU to respect Member States’ ‘essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding internal security’, and with the requirement that any common EU defence would have to be agreed unanimously and ratified by national parliaments.

So the EU does not have the powers to send Frontex or its reserve forces to other Member States without their consent, or to require Member States to deploy those reserve forces without their consent either. Moreover, this is politically problematic for many Member States, who have historic concerns about foreign forces coming on to their territory without consent, stemming from the Cold War, the Second World War, and earlier history besides. While Frontex and its reserves should not be regarded as an ‘army’, due to their limited size and functions, they will nonetheless be perceived as such. So this aspect of the proposals is not only legally suspect, but politically ill-judged.

What to make of Frontex’s other enhanced powers, which Member States are rather more likely to accept? The key issue here is the accountability of Frontex for human rights abuses. The agency has fought a long battle with the EU Ombudsman to evade any accountability for individual cases, but it would finally lose that war, if this proposal is accepted. Individuals (or someone acting on their behalf) could make a complaint about human rights abuses, but it would be rejected if it was ‘anonymous, malicious, frivolous, vexatious, hypothetical or inaccurate’. Each complaint would go through the Frontex Fundamental Rights Officer, who would decide on admissibility and then either forward the complaint to the Frontex Executive Director or a national border force. If the complaint is well-founded it will be followed up, possibly by disciplinary action.

However, the proposed process is inadequate. The Executive Director, who will decide on the merits of admissible claims, is obviously not independent of Frontex. There is no reference to a remedy if the complainant believes that his or his complaint has been wrongly rejected as inadmissible or not well-founded. Even where Frontex considers the complaint well-founded, the remedies are ineffective: there is no reference to damages, or a possible criminal prosecution in the most outrageous cases. Furthermore, the new rules are limited in scope, as they do not apply to national border guards, who are responsible for alleged cases of illegal push-backs and assaults upon migrants. To address this, the other proposals released yesterday should be amended to require Member States to hold independent investigations with effective remedies in any case where national border guards are alleged to have acted in breach of fundamental rights.

There is also a need for specific rules regulating Frontex (and national authorities’) action as regards the ‘hotspots’ for migrants at external borders, to clarify that they are not making decisions on the merits of asylum applications or issuing return decisions, and that only national authorities can make such decisions with full respect for the safeguards and content of EU and national law. (For more on the lack of clarity regarding the ‘hotspots’, see Frances’ Webber’s analysis here).

Other new measures

The most significant other new measure is the proposal for changes to theSchengen Borders Code. At present (see codified text here), Member States must check EU citizens at the external borders (either on entry or exit), to ensure that they hold an EU Member State’s passport which is not registered as lost or stolen. But there is no obligation to check them in security databases, except on a ‘non-systematic basis’. As for non-EU citizens, they must be more thoroughly checked on entry, including the use of security databases, but on exit the consultation is only optional, and security checks need only be carried out ‘wherever possible’.

Both sets of rules would be amended by the new proposal. EU citizens would have to be checked in security databases, both on entry and exit. But if this ‘would have a disproportionate impact on the flow of traffic’ at land and sea borders, Member States could decide to carry out such checks on a ‘targeted’ basis. There is no such derogation for air borders, which will also be subject to separate legislation (recently agreed in principle) concerning the collection of passenger records (Member States will also apply this law to internal Schengen flights). Also, the enhanced border checks won’t be recorded as such in a database, although that would happen in future if recent plans to include EU citizens in the future ‘smart borders’ rules are put into effect. As for non-EU citizens, the current derogation relating to exit will be abolished, and there will always have to be a check in security databases, regardless of any disproportionate impact on traffic.

So overall, checks on EU citizens in security databases would no longer be the exception to the rule (as at present); they would be the rule – subject to exceptions. The exceptions are relatively limited and the proposal does not accept that pressure at air borders could also be ‘disproportionate’. Surely that is a possibility, since if checks add several seconds each to a check of hundreds of disembarking passengers, a back-up could swiftly ensue. Given that data on air passenger movements will soon be recorded anyway, and that the Schengen Information System can’t be used to deny entry to EU citizens, the only practical use for the new rules would be in catching someone who was meant to be arrested, perhaps on the basis of a European Arrest Warrant, or who should be placed under surveillance. But in the latter case it might be awkward to arrange for the surveillance to start without tipping off the person concerned that it’s happening. The proposal might prove useful in detecting people subject to potential arrest due to suspicion of receiving terrorist training (see the separate recent proposal on this point), but is it really necessary for that purpose that it apply at all air borders?

Overall, it may be questionable whether any increase in security that may result from this proposal is proportionate to its impact on passenger movements. There would be a stronger case to amend the Borders Code to allow Member States to check certain flights or border crossings systematically following a risk assessment. This may give rise to concerns about discrimination, but there are already distinctions based on nationality as to who needs a visa, and it would have to be specified that all those on the particular flight must be checked – not just those who ‘appear Muslim’. Checks on all flights could only be justified if it were clear that ‘foreign fighters’ were returning to the EU via other countries too.

As for the other proposals, the Regulation on a standard travel document for expulsion would not change the substantive rules on expulsion; time will tell if it leads to non-EU countries accepting more expelled persons.

The real problem is with the lack of ambition of the asylum measures. As noted above, the only binding measure suggested yesterday would exempt Sweden from the EU’s relocation rules. This is largely a cosmetic gesture, since only a tiny fraction of the 160,000 who were meant to be relocated – which anyway is not a huge proportion of those entering Greece and Italy – have in fact been relocated. In the meantime, the capacity of Greece and other States to register migrants, process asylum applications, and ensure basic living conditions for the persons concerned is clearly under immense strain.

What the EU really needs is a new strategy to deal with these protection and humanitarian needs. Is there anything it can do to make the relocation programme work? Failing that, can it assist Member States to process asylum applications, or do more than it is doing to ensure basic living conditions are satisfied? Why the focus on empowering Frontex, and no parallel attempt to empower the EU’s asylum support agency to play a greater role to address some or all of these issues?

Furthermore, pending a full review of the EU’s Dublin system (to be completed early next year), the Commission could at least have issued a recommendation to Member States on how to apply the existing Dublin rules on family reunion, and to widen the admission of family members to admit siblings, and the relatives of EU citizens or non-EU citizens who are legally resident other than as refugees or asylum-seekers.

As Thomas Spijkerboer and Tamara Last have pointed out, there is no shortage of migration controls in the EU. The death toll of migrants and refugees has built up over the decades in which visa requirements were imposed and carriers were sanctioned for letting those without authorisation get on a flight or a ferry. Bolstering Frontex may have an impact on the management of those who arrive, but solves neither the underlying problems in the country of origin or the huge pressure placed on national asylum systems – or the human misery that accompanies it.

Can Schengen be suspended because of Greece? Should it be?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

A leaked Council document (see separate blog post) suggests in effect that the Schengen system should be suspended for up two years, due to ‘systemic deficiencies’ in the control of external borders by Greece. That would allow any Schengen States which wish to do so to maintain or introduce border checks on their ‘internal’ borders with each other. Probably not all Schengen States would take this opportunity, but many would (especially since a number of them already do so). This follows a recent press report in the Financial Times (paywalled), which states that some Member States are considering threatening to throw Greece out of the Schengen system, due to its management of refugees and migrants at the external borders.

It’s possible that the general threat to suspend Schengen is intended as a threat to suspend Greece only, but is simply badly drafted. Or perhaps the idea is to threaten to suspend the whole of Schengen, and pin the blame on Greece. Either way, in my view, this threat is seriously mistaken, for both legal and political reasons.

The Legal Framework

In principle, the Schengen system can’t be scrapped completely without amending the EU Treaties, since the Treaties refer to it several times. Instead, there are two types of possible suspensions: short-term (up to three months) and long-term (up to two years). The leaked Council document refers to use of the long-term suspension.

The short-term waiver rules have always formed part of the Schengen system. They allow individual Member States to reimpose checks on internal borders for a short time, for reasons of public policy and public security. Over the years, those provisions have often been invoked by Member States, usually for a few days during an international summit or football tournament. This autumn, they have been invoked more often and for longer periods, as a response to the refugee crisis affecting the continent. Since this reintroduction is only allowed for a maximum period of six months, there is an upcoming legal problem if Member States with to prolong these controls past next spring.

But a newer, different set of rules apply to suspending a Member State from the Schengen system. As a response to the ‘Arab Spring’ of 2011, and a spat between Italy and France over responsibility for some Tunisians, the Schengen rules were amended in 2013 in order to provide for the collective reimposition of internal border controls for up to two years. Those amendments need to be read in conjunction with the rest of the rules which they amended. So I suggest you read them in the codified version (showing the amendments), which is set out in an Annex to the report which I wrote for the SIEPS thinktank on the revised rules (start on page 121).

These amendments were generally understood as providing in effect for the possible suspension of individual Member States from the Schengen system. However, that is not expressly set out in the rules, and the leaked Council document clearly intends something broader, since it refers explicitly to continuation of existing border checks, ie between Germany and Austria, not (only) between other Member States and Greece. But the role of individual Member States is still relevant, because this collective suspension of Schengen can only be triggered if there are ‘serious deficiencies’ in how one Member State applies the Schengen external borders rules.

The process would start with a Commission recommendation following a Schengen evaluation, according to the separate rules (also amended in 2013) on the process of assessing whether Schengen states comply with their obligations. If the Commission finds in its report that there are ‘serious deficiencies’ in a Member State complying with its external border control obligations, then it can recommend that this country take ‘specific measures’, including accepting assistance from the EU’s border agency, Frontex, and submitting plans for Frontex to assess.

If there is not enough action on settling these problems within three months, the process can escalate. In ‘exceptional cases’ where there is a ‘serious threat to public policy or public security’ in the Schengen area or parts of it, the Council can recommend ‘as a last resort’ to Member States that they reimpose border controls against that Member State for periods of six months, renewable up to the two-year maximum. It’s arguable that this process can be fast-tracked and be applied even without giving the Member State three months to fix its problems. Since Member States would have to vote in favour of it in the Council (by a qualified majority), it can be assumed that most Member States would then follow this recommendation. The Council has to act on a proposal from the Commission, but Member States can request the Commission to make such a proposal.

In adopting this recommendation, the Council has to assess whether it will ‘adequately remedy’ the threat to public policy, as well as the ‘proportionality’ of the measure in relation to the threat. This must be based on detailed information, and consider the EU assistance which was provided or which could have been requested, the likely impact of the deficiencies in border control upon the threat to public policy or public security, and the impact on the free movement of persons.

The legality of suspending Schengen and/or sanctioning Greece

It’s not clear exactly where we stand in the process as regards Greece. The Commission has recently adopted a Schengen evaluation report, but it’s not public. It’s not even clear if that report concerns Greece (all Schengen states are evaluated). So it would take a while (three months after a formal finding of ‘serious deficiencies’, which hasn’t happened yet as far as I know) before Greece could be sanctioned, unless the process is fast-tracked.

Indeed, the Council document seems to be aiming to fast-track the process. It wants the Council already to request a Commission recommendation to suspend the abolition of border controls for up to two years. Since (as far as I am aware) there’s not even a finding of Greek ‘serious deficiencies’ yet, there’s obviously not yet a three month period during which those problems continued. And the Council document doesn’t even attempt to assess whether the substantive criteria apply; the intention simply seems to be to find some way to justify a longer period to continue the internal border checks which Member States have reintroduced recently.

If the current threats get to the stage of a Council Recommendation that border controls be reimposed, it’s not clear if Greece could sue the Council in the EU Court of Justice (since technically Recommendations are not binding), or would have to sue Member States for following the Recommendation instead. Individual travellers could also sue Member States in national courts for imposing border controls, indirectly challenging the legality of the Recommendation; national courts could then send the issue to the Court of Justice.

Procedural issues apart, is there a substantive case for suspending Schengen rules and reimposing border controls, because of ‘serious deficiencies’ due to Greek control of the external border? In my view, there are serious doubts that there is such a case, for two main reasons.

First of all, according to the Financial Times article, other Member States are annoyed because Greece did not accept the support of Frontex, register enough asylum-seekers, or request humanitarian aid to assist them. While the failure to request support from Frontex is referred to in the EU border controls legislation, the other issues are not. And for very good reason: because the failure to control the numbers of refugees at the external borders is NOT a breach of the Schengen rules.

This assertion may seem surprising, because the critics of the EU’s response to the refugee crisis – on either side of the argument – often assume that EU law requires refugees and asylum-seekers to be refused entry at the borders. From one side, the EU is criticised for letting refugees and asylum-seekers in, and therefore ‘not protecting its borders’. From the other side, the EU is criticised for establishing a ‘Fortress Europe’.

Both sides are clearly wrong – at least, on this specific legal issue. This follows from the Schengen Borders Code itself, which expressly exempts refugees from the rules on penalising non-EU citizens for unauthorised entry across the borders, and includes an exemption from the usual conditions on border crossing if the non-EU citizen is claiming asylum. It equally follows from the EU’s asylum procedures Directive, which requires Member States to process not only asylum applications made on the territory, but also those made at the border. (Of course, Member States don’t always fully comply with their EU legal obligations).

So it’s really the border crossing rule itself which is controversial, not Greece’s failure to apply it. There’s a political problem with the rule in practice, either because (from one side’s perspective) it is no longer keeping out enough people, or (from the other side’s perspective), it is too difficult for genuine refugees to reachEU territory without the risk of drowning or paying money to smugglers.

But for the purposes of finding that there are ‘serious deficiencies’ in Greek control of the external border, the point is that Greece is not failing in any obligation to stop asylum-seekers crossing the external borders – quite simply because there’s no such obligation. Just the opposite. Of course, due to the sheer scale of the numbers involved, it’s difficult for Greece to operate an effective asylum system, but that failure is subject to a wholly separate process. Indeed, the European Court of Human Rights and the CJEU have already said that Member States cannot send asylum-seekers back to Greece, because the asylum system has effectively collapsed there. The Dublin III Regulation sets out rules which apply in the event that the Dublin system has to be suspended for those reasons, and the EU has recently adopted Decisions (discussed here) to relieve the burden on Greece a little by relocating some asylum-seekers from that country.

Of course, some of those who cross the Greek border do not apply for asylum immediately, or later fail in their asylum applications. According to UNHCR statistics, about half of those recently arriving in the Greek island of Lesvos (the main destination) are coming from Syria and Iraq (countries with high refugee recognition rates) and half are coming from other countries, with lower recognition rates. In that context, it is legitimate to suggest that Greece ought to accept assistance from Frontex and other EU agencies, and that Frontex in particular has a role coordinating the fingerprinting and registration of people when they first arrive. (Fingerprinting of irregular migrants and asylum-seekers isn’t a panicked authoritarian response to the refugee crisis, as is sometimes suggested, but a long-standing EU law obligation, going back to 2003).

The second problem is the link between the Greek ‘deficiencies’ and the reimposition of border controls, either against Greece or between other Schengen states. There’s certainly no link between the deficiencies and the borders between Greece and other Schengen States, since none of those are land borders, and (would-be) asylum-seekers and refugees travel by land between Greece and other Member States. So checking people flying between Greece and other Schengen States would be hugely disproportionate to the relevant deficiencies.

What about border controls between other Schengen States? These are the controls that the Council document expressly wants to continue. Here there is a link between the people originally entering via Greece and later trying to cross the Austria/Germany border, for instance. But again, the real deficiencies are with the EU’s asylum system, not Greek border controls, since EU rules provide for admission of asylum-seekers. Asylum-seekers move on to other Member States because the Dublin rules were not drawn up with today’s increased numbers of asylum-seekers in mind, and Greece can’t manage the numbers that it would be responsible for under the rules. That’s certainly a problem – but that problem is notcaused by Greek deficiencies in external border controls. The EU has to use the legal instruments available under its asylum policy to try to fix it.

Political context

Although it’s not evident from the face of the document, the political context of the Council paper may be an attempt to convince Greece to agree to further measures relating to border control. That’s evident from the Financial Times article, which conveys several Member States’ allegations against Greece (summarised above). In turn, the Greek government has defended itself and made counter-allegations against the EU, which are summarised in a Guardian article.

In some ways, this resembles the attempt by some Member States this summer to coerce Greece to leave the euro ‘temporarily’. As I argued at the time, this process did not have a shred of legality, unless we use the creative argument that Greece had never legally joined the euro.

However, there are differences as regards Schengen. There is on paper a process to suspend Schengen rules temporarily; the only question is the correct interpretation of those rules. Undoubtedly some will not share my interpretation above, and would argue that defects in the asylum system are implicitly part of the assessment of whether there are ‘serious deficiencies’ in external border control. In the absence of case law to date, it’s an open question which of us would be correct. It’s also an open question whether the Commission – which has made much of its strong support for Schengen – would be willing to suggest a suspension for two years.

Even if it’s legal to threaten Greece this way, is it wise? The EU was heavily criticised for trying to strong-arm Greece as regards the euro – although technically it wasn’t the EU institutions making the threats last summer, but rather the parallel ‘Eurogroup’ bodies which are not an ordinary part of the EU’s political system.

Far better for the EU to redouble its efforts to help both Greece and the people concerned, by ensuring that there are decent reception centres and living conditions in the country, by making greater effort to ensure that the relocation system works, and by working with Turkey to genuinely improve the living conditions of refugees there, so that fewer of them want to leave (more on that recent EU/Turkey deal in a later blog post).

As regards Schengen itself, if a temporary suspension is strongly desired, it might be better to provide for it by means of a legislative amendment to the Schengen Borders Code (with a ‘sunset clause’ providing for its expiry, since permanent suspension would violate the Treaties) rather than by the indirect means of threatening Greece. Or an amendment to the rules on checks near the internal borders could justify some occasional checks in the event of dysfunctional applications of EU asylum rules, if fixing those rules proves politically impossible – as well it might.

EXCLUSIVE: LEAKED DOCUMENT REVEALS EU PLANS TO SUSPEND SCHENGEN FOR TWO YEARS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Comments by Steve Peers

The following is Council document 14300/15, dated 1 December 2015. It’s entitled ‘Integrity of the Schengen area’, and addressed to Coreper (the body consisting of Member States’ representatives to the EU) and the Council – presumably the Justice and Home Affairs ministers meeting Thursday 3 and Friday 4 December.

The first three parts aren’t exceptional, but part 4 calls for the start of a process to officially allow the reimposition of internal border controls in the Schengen area for up to two years. Legally, this has to be triggered by ‘serious deficiencies’ in the border control of a particular Member State.

This has been reported as a plan to suspend Schengen as regards Greece. But the wording of the document suggests a much broader intention – applying to the whole of Schengen. This intention is clear from the reference to continuing in force the border controls that many Member States have imposed this autumn, which can only be imposed for a maximum period of six months. The purpose of using the ‘serious deficiencies’ clause, instead of the normal clause on suspending Schengen, is clearly to allow a much longer suspension period. It may be that not every internal border would be subject to checks, but the intention seems to be to issue a blank cheque to this effect.

More on the legal details (and whether this is even legal) in a parallel blog post shortly.

Document follows:

INTRODUCTION

The migratory and refugee crisis has put the application of the Schengen acquis and of the asylum acquis under severe pressure during the last years, with an unprecedented influx of migrants over the last months. In this context, several Member States have temporarily reintroduced border control at their internal borders, with reference to a serious threat to public policy or internal security as provided for by the Schengen Borders Code. Temporary controls at internal borders have also been carried out by a Member State for reasons related to terrorism, following the attacks in Paris on 13 November 2015. In addition, some Member States have taken specific measures to reinforce the control at their external borders.

In its Conclusions of 9 November 2015 on measures to handle the refugee and migration crisis, the Council has identified a number of measures to implement fully the orientations already agreed by the European Council [1]. These measures address a wide range of issues, including in particular reception capacities, hotspots, relocation, return, readmission, resettlement, lack of cooperation of migrants, contingency planning, the functioning of the Schengen area, external and internal borders, smuggling in human beings, visa policy, a common information strategy and the use of the Integrated Political Crisis Response (IPCR).

In the Conclusions adopted on 20 November 2015 on Counter-Terrorism after the Paris terrorist attacks by the Council and Member States meeting within the Council it was agreed to implement reinforced measures for the purpose of fighting terrorism, including strengthening controls at external borders[2].

Under point 9 of its Conclusions of 9 November 2015, the Council decided “to conduct at the December Justice and Home Affairs Council, on the basis of the 8th bi-annual reporting by the Commission, a thorough debate on the functioning of the Schengen area (1 May 2015 – 31 October 2015) and on the lessons learned from temporary reintroductions of controls at internal borders”.

In Coreper on 26 November 2015 the Commission indicated, however, that the said 8th bi-annual report would not be ready for the meeting of the JHA Council in December 2015, but would be integrated in the future border package. The Presidency concluded that Ministers would be invited to hold a debate on the functioning of the Schengen area on the basis of a Presidency paper.

With a view to preparing this debate, the Presidency issued a questionnaire on lessons learned from temporary introductions of controls at internal borders [3]. The Presidency has prepared the present paper in the light of replies from Member States, having in mind also major issues that have been raised during recent months regarding the functioning of the Schengen area, with a focus on border controls.

ISSUES FOR DISCUSSION

The Presidency invites the Council to hold a debate on the functioning of the Schengen area and to address in particular the following issues related to internal and external border controls.

Consultations between Member States – Based on the information available to the Presidency, it appears that, in situations where some Member States have applied recently Article 25 of the Schengen Borders Code to reinstate temporarily controls at internal borders, there has not been sufficient prior consultation with other Member States. The same has been noticed for technical reinforcement of borders between border crossing points, for changes in national policies leading to filter migrants at border crossing points and for organizing the transit of migrants from one border to next. This has severely hindered the possibility for neighbouring countries to prepare themselves for changes in migratory routes and for all Schengen countries to handle migratory flows in a coherent manner.

In addition, procedures approved by Coreper in March 2015 for improved information sharing on temporary reintroduction of border controls at internal borders have not been fully respected in all cases.

The Presidency proposes that:

– even in emergency situations falling under Article 25 of the Schengen Borders Code and requiring immediate action, a Member State deciding to temporarily reintroduce internal border controls should make all efforts to inform neighbouring Member States sufficiently in advance to allow neighbouring Member States to adjust to the new situation and, where possible, to cooperate to reduce the negative impact of the reintroduction of internal border controls;

– Member States reconfirm their commitment to fully apply the procedures for improved information sharing on temporary reintroduction of border controls at internal borders agreed in Coreper in March 2015. [4]

Securing external borders – A number of irregular migrants entering the EU, or exiting an EU country to re-enter later in the EU, pass through the so-called “green land borders” (the parts of the land borders between border crossing points). According to Frontex, more than 1,2 million illegal border crossings have been detected at the EU external borders for January – October 2015, an increase of 431% compared with the corresponding period in 2014. In addition, a number of illegal crossings have not been registered. The exact figure is unknown.

Also in the context of the fight against terrorism, the Council concluded on 20 November 2015 that control at the external borders which are most exposed should be strengthened “in particular by deploying, when the situation so requires, rapid border intervention teams (RABITs) and police officers in order to ensure systematic screening and security checks”.

In view of the critical situation that the EU is currently confronted with, the Presidency proposes that:

– considerably more efforts should be made to prevent illegal border crossings (entry and exit) through the external “green land borders” and to ensure that external borders are crossed only at the border crossing points referred to in Article 4, subject to the exceptions in Article 4(2), of the Schengen Borders Code;

– RABITs are deployed as necessary for that purpose. This is at present particularly relevant for external land borders in relation to the Western Balkan countries route;

– A Frontex operation at the northern borders of Greece be deployed without delay to address severe difficulties encountered with neighbouring countries.

Increasing checks regarding illegal migration – Irregular migrants who have entered the Schengen area and have not been registered at their arrival should not be able to stay in that area undetected for long periods of time.

The Presidency proposes that:

– the possibilities for checking persons inside the Schengen area, including by the use of relevant databases, are fully exploited to ensure that irregular migrants are detected and registered and their cases processed.

Addressing serious deficiencies in external border controls – Several Member States have recently reintroduced temporarily internal border control pursuant to Articles 23-25 of the Schengen Borders Code. Under these provisions, a Member State may not implement such controls for more than a total period of six months. A prolongation of this situation would require the adoption by the Council, upon a proposal from the Commission, of a recommendation in accordance with Article 26 of the Schengen Borders Code. Such recommendation may be adopted in exceptional circumstances to address a situation where a Schengen evaluation has identified persistent serious deficiencies relating to external border control and the measures referred to in Article 19a of the Schengen Borders Code are not effective. Where in such cases the overall functioning of the area without internal border control is put at risk, and insofar as the exceptional circumstances constitute a serious threat to public policy or internal security within the area without internal border control or within parts thereof, the period for the reintroduction of internal border control may be extended up to a total maximum of two years.

On this basis, the Presidency:

– proposes that the Council invites the Commission to consider presenting a proposal as appropriate pursuant to Article 26 of the Schengen Borders Code for a Council recommendation that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders;

– considers that, at the same time, all possible measures should be taken aimed at strengthening the normal functioning of the Schengen area, in particular by reinforcing the control of external borders.

Schengen, un coupable idéal ?

ORIGINAL PUBLISHED ON CDRE SITE (25 NOVEMBRE 2015)

par Henri Labayle,

Les réalisations européennes servent de bouc émissaire aux crises nationales. Ce n’est pas chose nouvelle. Après l’Euro, l’espace « Schengen » de l’Union est aujourd’hui sur la sellette. Les attentats terroristes lui auraient donné le coup de grâce, après ceux de la crise des migrants. Est-ce bien réaliste, est-ce vraiment opportun ?

Les discours officiels relèvent ici de la vieille fable de la paille et de la poutre. C’est aux Etats membres eux-mêmes que le conseil du ministre de l’Intérieur français de « se reprendre » devrait être donné tant la construction de Schengen est dépendante de leur volonté. Néanmoins, le réalisme interdit l’optimisme. Ayant perdu de vue ses caractéristiques initiales, Schengen n’échappera pas à une remise en question profonde.
Le fabuleux destin de l’espace Schengen, sa « success story », enregistrent incontestablement au coup d’arrêt, dont il conviendra de mesurer l’impact réel. Il y a des explications à cela.

1. Une construction datée

Les principes de Schengen sont inscrits désormais dans les traités : abolition des contrôles aux frontières intérieures, reportés là où l’espace commun est en contact avec les pays tiers. Sont-ils toujours à la hauteur des défis ? Répondent-ils à la menace terroriste comme à la pression migratoire ? A trop raisonner à logiciel constant, on peut en douter.

Le contexte de la création de Schengen, en 1985, a été oublié. Fruit d’un accord bilatéral franco-allemand, rejoint par les Etats du Bénélux, Schengen s’inscrivait dans un paysage aujourd’hui disparu : peu de participants, ensemble homogène animé des mêmes buts. Au point d’être scellé dans une convention d’application dont la date n’est pas indifférente : 1990, au lendemain de la chute du mur de Berlin …

En attendre une réponse efficace à des défis qui n’existaient pas lors de sa conception est un peu simpliste.
Que Schengen n’ait pas été à même, en 2015, d’arrêter les flots de réfugiés remontant le ventre mou du couloir des Balkans s’explique : il a été conçu en 1990 dans la logique d’un continent fermé, d’une Europe coupée en deux par le rideau de fer, ignorant les 7700 kilomètres de frontières terrestres devenues les siennes aujourd’hui. Figée dans une problématique Nord/Sud, l’Europe de l’époque n’avait aucune idée de la dimension Est/Ouest qui s’y est surajoutée.
Le contexte géopolitique de l’époque le confirme. L’environnement de Schengen était fait de l’Union soviétique de Gromyko au Maroc d’Hassan II en passant par la Tunisie de Ben Ali et la Libye de Kadhafi, sans parler de la Syrie ou de la Yougoslavie de Tito. Les dictateurs qui l’entouraient étaient ses meilleurs garde-frontières et la vague migratoire de 2015 inimaginable …

L’argument vaut aussi en matière terroriste. Oubli ou mauvaise foi des partisans d’un retour aux frontières nationales, celles-ci font obstacle à la lutte anti-terroriste. D’ETA réfugié en France à l’IRA en République d’Irlande ou à la bande à Baader en France, les exemples ne manquent pas. Leur maîtrise nationale empêcha-t-elle la vague d’attentats des années 80 en France ? Evidemment non.
Pour autant, « l’obsession » de la frontière justement décrite par Michel Foucher n’a pas disparu. En fait, Schengen se borne à déplacer le lieu où la frontière joue toujours son rôle de barrière, de protection. Il est un compromis entre l’ouverture d’un continent, notamment pour des besoins économiques, et sa fermeture, pour des raisons sécuritaires.

La crise de 2015 met ouvertement en question l’équilibre de ce compromis, sa capacité à assumer la fonction sécuritaire de la frontière commune. Les Etats, en trente ans, l’ont construit et maintenu envers toute logique, d’où leur responsabilité centrale.

2. Des compromis boiteux

Habillé d’un prétexte sécuritaire, ce que l’on appelait à l’époque le « déficit sécuritaire », Schengen répondait en fait à une autre réalité : celle du besoin économique d’un continent asphyxié, cloisonné en Etats aussi nombreux que petits. Le marché intérieur, lancé exactement à la même période, ne pouvait s’en satisfaire.
Le détour par la case « sécurité » dissimule à peine cette vérité. Ouvrir l’espace intérieur était d’abord un impératif économique, satisfaisant les opérateurs mais plus facile à assumer en mettant en avant la lutte contre l’immigration ou le crime. La réinstauration des contrôles provoquée par la crise des attentats de Paris confirme l’impact économique de cette ouverture : retards dans les aéroports, kilomètres de bouchons sur les autoroutes aux passages frontaliers avec l’Espagne ou l’Italie… Le compromis entre mobilité et sécurité, pourtant exclusivement au cœur du projet initial Schengen, s’est réalisé au détriment de la seconde. Quitte à ignorer les aspirations des citoyens européens.
D’autant que, dans sa quête de points d’appui, la construction européenne s’est emparée de Schengen pour en faire un symbole. Curieux retournement des choses, Schengen vilipendé lors de sa création, stigmatisé parce que qualifié de « liberticide » et que « l’Europe des polices » était alors un gros mot, fut ensuite présenté comme l’acquis principal de la liberté des citoyens européens. Avant aujourd’hui d’être à nouveau accusé de tous les maux d’une intégration européenne qu’il ne réalise pourtant pas.

La vérité se cache ailleurs. A force de non-dits et de compromis étatiques, la démarche sécuritaire quasi-exclusive sur laquelle reposait Schengen initialement s’est progressivement banalisée.
Elle imposait le respect d’un certain nombre de principes. Avant toute autre chose, celui de la responsabilité de chaque Etat, garant par son sérieux de la sécurité de tous. D’où le refus initial de l’ouvrir à des partenaires jugés peu fiables, de l’Italie à la péninsule ibérique ou à la Grèce.
La logique communautaire, celle des élargissements, l’a emporté sur ce paramètre. Une prétendue « confiance mutuelle » entre Etats a été vantée dans un univers où la méfiance demeure la règle, peu sensible au credo du monde libéral.

Puisque, depuis des années, la Grèce était une passoire et ne remplissait plus ses obligations, comment s’étonner que le système ait volé en éclat au début de l’été ? Puisque, depuis des années, le système dit de « Dublin » (imaginé à Schengen) ne remplissait pas son office, pourquoi s’étonner de l’abcès de fixation ouvert hier à Sangatte, aujourd’hui à Calais ? Enfin, faute de donner un sens au mot « sanction », pourquoi l’Union européenne ne s’est-elle pas préoccupée d’une réaction vigoureuse, réservant ses foudres aux eaux de baignade et aux aides d’Etat …

Arbitrant au moyen de compromis médiocres, quand il aurait sans doute fallu établir publiquement et respecter des priorités politiques, l’Union s’est donc trouvée démunie lorsque la bise est venue, lorsque les urnes nationales et européennes se sont emplies de votes protestataires. Faisant l’aubaine de partis extrémistes dépourvus de toute réponse réaliste, elle s’est ainsi placée sur la défensive.
L’impasse faite sur la dimension économique du contrôle des frontières illustre cette absence de pilotage. Le mirage des solutions technologiques de demain, les « smarts borders » et la biométrie, ajouté au lobbying des grandes multinationales désireuses d’obtenir les marchés publics y sacrifiant, ne peut dissimuler l’aberration consistant à confier la sécurité de tous à un Etat membre, la Grèce, étranglé financièrement et budgétairement pour les raisons que l’on sait …

S’il est exact que les Etats Unis consacrent 32 milliards de dollars à leur politique migratoire dont la moitié au contrôle des frontières, comment comprendre les 142 millions d’Euros du budget de Frontex ?

Dilué, Schengen a perdu de vue l’originalité de sa charge pour être appréhendé comme une politique ordinaire. Sauf que les Etats membres n’ont en rien abdiqué.

3. Une logique intergouvernementale

Laboratoire de la construction européenne, Schengen demeure une construction aux mains des Etats.
Au prix d’une certaine schizophrénie, les Etats ont en effet prétendu à la fois intégrer leur action mais en conserver la maîtrise. Entre ceux qui voulaient mais ne pouvaient pas en faire partie (la Bulgarie, la Roumanie), ceux qui pouvaient mais ne le voulaient pas (les iles britanniques), ceux qui ne pouvaient pas mais que l’on a voulu (la Suisse, la Norvège, l’Islande) et ceux qui ne pouvaient pas et dont on aurait pas du vouloir (la Grèce), Schengen est devenu un véritable patchwork.

La greffe aurait pu prendre. Elle n’a été qu’imparfaite.
D’abord car la diversité des situations nationales n’a pas disparu. D’une part, les législations et pratiques nationales demeurent suffisamment éloignées pour que l’effet « vases communicants » ne joue pas. Migrants comme criminels ont parfaitement identifié ces points faibles. D’autre part car le degré d’attraction des Etats membres de cet espace ne s’est pas réduit, rendant inutile le souhait de responsabiliser l’ensemble. Convaincus que l’Allemagne et la Suède étaient des eldorados, les demandeurs de refuge n’envisagent pas d’autre destination, pour la plus grande satisfaction des Etats membres qu’ils traversent et qui vont jusqu’à leur faciliter la tâche.

Ensuite, parce que les Etats refusent toujours la contrainte. En indiquant clairement dans son article 4 que « la sécurité nationale relève de la seule souveraineté de chaque Etat membre », le traité sur l’Union fixe une barrière infranchissable.

Les enseignements des commissions d’enquête au lendemain des attentats de Charlie Hebdo le confirment. Le dispositif européen est moins en cause que les conditions de sa mise en œuvre. La faillite de Schengen n’est pas dans la poursuite mais dans la prévention, dans le renseignement en amont des attentats et l’alimentation des outils communs qui n’est pas obligatoire. La qualité remarquable de l’action policière et judiciaire, y compris par delà la frontière franco-belge, ne dissimule la faillite de la prévention politique et policière, des deux cotés de cette frontière.
Comment Mehdi Nemmouche hier, Abaaoud ou les frères Abdeslam cette semaine, ont-ils pu perpétrer leurs crimes sans obstacle réel, échappant aux contrôles Schengen autant que nationaux ? Qui refusait jusqu’au Conseil de vendredi dernier d’inclure les « combattants étrangers » dans le SIS et pourquoi 5 Etats seulement fournissent-ils plus de la moitié des informations sur leurs déplacements au Système d’information d’Europol de l’aveu du coordinateur européen de la lutte contre le terrorisme ?

L’absence de transparence de l’Union ne facilite pas la réponse. La responsabilité des Etats membres est pourtant au cœur de ce fiasco, constat déjà posé après Charlie Hebdo, sans réelle suite.

La France n’y échappe pas, étonne par l’arrogance de notre discours public. Des failles de son contrôle judiciaire aux pannes de son système de fichier Chéops, à sa gestion des documents d’identité, aux erreurs de ses services de renseignements ou aux moyens alloués et à l’autisme de ses gouvernants qui qualifient de simples « complicités françaises » l’action des terroristes de Paris, elle n’est pas en situation d’administrer les leçons qu’elle prétend donner à la Belgique et à l’Union.

Celle-ci doit pourtant se remettre en question.

Quant au périmètre de son action d’abord. Malgré le politiquement correct, la composition de l’espace commun où contrôles comme échanges de renseignement s’effectuent est une question ouverte. Les Pays Bas, comme d’autres, semblent réfléchir à un redimensionnement effectué soit par un repli, sur un petit nombre de partenaires performants, soit par une mise à l’écart, de membres jugés non fiables.

Quand au fond ensuite. Les principes d’organisation sur lesquels Schengen repose, frontières intérieures/extérieures demeurent aussi pertinents qu’hier. En revanche, ils ne peuvent plus se satisfaire du vide politique actuel. La cohérence exige de percevoir l’asile comme un même devoir, réclame de criminaliser le radicalisme et le terrorisme de façon identique. Ce préalable n’est pas satisfait aujourd’hui dans l’Union. De même que la « solidarité » doit avoir un sens concret pour les Etats membres, ces derniers doivent partager l’accueil des réfugiés et privilégier la coopération et la police judiciaires et la coordination des poursuites à l’action exclusive des services de renseignement. Dans tous les cas, il faut y mettre le prix.

Alors, pourquoi n’entendons nous pas les mots de « parquet européen », « d’équipes communes d’enquête », « d’Eurojust » ? Pourquoi l’essentiel du contingent de la relocalisation est-il encore vacant ? Parce que nous n’osons pas lever le tabou de l’action commune, de la quasi-fédéralisation qu’impliquent le développement des agences se substituant aux Etats défaillants, que nous prétendons que l’administration nationale des politiques européennes est toujours l’alpha et l’oméga de la construction européenne ?

L’hypothèse de l’avancée, même si celle du repli est peu crédible sinon impossible, est donc incertaine. A l’image de celle du projet européen tout entier dont Schengen demeure bien, toujours, un « laboratoire ».

Immigration detention in Europe

ORIGINAL PUBLISHED ON 02.11.2015 ON EUTOPIA

by Mary Bosworth

Well before the current mass arrival of refugees, Europe has been busy closing its borders. As part of this attempt to ‘manage migration’, most member states have witnessed a growing intersection between criminal justice and immigration policy, introducing a host of new legislation criminalising matters that used to be purely administrative.

Police have acquired new roles and responsibilities related to border control, while prisons have paid far more attention to the citizenship of prisoners than ever before.

IN BRIEF

Although seeking asylum should not lead to a period of detention, due to the Dublin Conventions, asylum seekers are sometimes detained before removal to a third country
The uncertainty of detention is more than just a personal tragedy or a cause of momentary confusion; it is a constitutive part of this form of confinement
In Britain Immigration Removal Centres offer art and crafts, English as a second language, gym, IT training and access to the internet

Alongside these criminal justice initiatives, most European Union member states have opened new sites of administrative detention. These immigration detention centres hold foreigners under immigration powers either as they arrive or to enforce their departure. They may take a variety of forms, from temporary camps to purpose-built institutions.

As we witness growing numbers of new arrivals seeking sanctuary within Europe, we need to be very clear about the personal and moral impact of detention, both for those behind bars, but also for society as a whole.

Although states have long had powers to deport foreigners from their territory, and have confined them for various reasons, administrative sites related to processing asylum claims and/or detaining failed asylum seekers prior to deportation are more novel. At times of war, most states deploy custodial practices of some kind to hold suspect foreigners.

From the internment camps created in France for exiles fleeing the Spanish civil war in the mid-1930s to concentration camps of WWII, such practices overlap with more violent ideologies. So, too, the post-war post-colonial era has left its mark.

In Britain, the contemporary immigration detention system dates to 1970, when the first purpose-built institution, the Harmondsworth Detention Unit, was established. Opened in response to the Immigration Appeals Act of 1969, which gave Commonwealth citizens who were denied entry at the border the right to an in-country appeal, this preliminary institution laid the foundations for the far more complex and larger system that exists today.

In France, the chronology is similar, with the original target being migrants from Algeria. There it was not until the 1980s that legal safeguards were developed.

Today, a vast array of institutions can be identified in Europe as sites of detention. Many are concentrated in the southern states, reflecting the distribution of arrivals. There are a range of possible forms of accommodation including tents and shipping containers.

According to the EU Returns Directive, nobody should be detained for immigration matters for longer than 18 months. Most countries have agreed on a much shorter time frame, from 45 days in France to 90 days in Italy.

Although seeking asylum should not lead to a period of detention, due to the Dublin Conventions, asylum seekers are sometimes detained before removal to a third country. A high proportion of those confined are people whose asylum claim has been denied.

Continue reading “Immigration detention in Europe”

THE NEW DIRECTIVE ON IMMIGRATION OF STUDENTS AND RESEARCHERS: A SMALL STEP OR A BIG LEAP FORWARD?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Monday, 23 November 2015)

by Steve Peers

For a number of years, the EU has aimed to attract highly-skilled non-EU migrants to its territory. However, the existing legislation on this issue – the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004 – have only had a modest impact on attracting more students and researchers to the EU, according to the Commission’s reports (see here and here) on the two Directives, issued in 2011.

Consequently, the Commission proposed an overhaul of this legislation in 2013. The European Parliament (EP) and the Council recently agreed on the text of this proposal (for the text of the provisional version of the future Directive, see here; the final version will be ‘tidied up’ a little legally). As you would expect, the EP and the Council compromised between their respective positions (for those positions, see here and here), which I discussed in an earlier blog post.

I’ll examine first the background and content of the new Directive, then look at how effective it is likely to be in its objective on increasing the numbers of researchers and students coming from third States.

Background

The current students’ Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The CJEU has ruled twice on the interpretation of this Directive. In Sommer it ruled that Member States could not apply a labour-market preference test for students; in Ben Alaya case (discussed here), it ruled that Member States must admit students who comply with the rules on admission in the Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers’ Directive. All three countries have opted out of the new law.

The new law

The new Directive merges the students’ and researchers’ Directives, making major changes to them both. First of all, the Commission proposed that Member States would be obliged to apply the currently optional rules relating to school pupils, unpaid trainees and volunteers, as well as rules on two new groups of migrants: au pairs and paid trainees. The EP agreed with this idea, while the Council rejected it entirely. Ultimately, the two institutions compromised: the new Directive will have binding rules on (paid and unpaid) trainees and some volunteers (those participating in the EU’s European Voluntary Service), although stricter conditions will apply to the admission of trainees (more on that below). However, the rules on other volunteers and school pupils will remain optional, along with the new rules on au pairs.

Next, the Commission proposed to limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission. The final Directive accepts the basic principle that the power to set more favourable standards should be more limited that at present, but imposes fewer such constraints than the Commission wanted. Member States will be allowed to apply more favourable rules for the persons concerned as regards the time limits on their residence permits. Many of the conditions relating to admission and withdrawal or non-renewal of the right to stay will be optional, not mandatory (as the Commission had proposed), and the Council insisted on many additional options being added. A clause in the preamble sets out the Council’s wish to provide expressly that Member States can have rules on admission of other categories of students or researchers.

Against the Commission’s wishes, the final Directive provides that the current rules on delegating decision-making to research institutions or universities will remain. Furthermore, it adds that Member States can optionally delegate such powers as regards volunteers or trainees as well.

Trainees are defined (more restrictively than the current law) as those who have recently completed a degree (within the last two years), or who are currently undertaking one. Their time on the territory is limited to six months, although this can be longer if the traineeship is longer, and the authorisation can be renewed once. But Member States retain the power to set more favourable standards as regards these time limits.

One striking feature of the agreed Directive is a new right for students and researchers to stay after their research or study to look for work or self-employment. The EU institutions agreed on the principle of this right, but disagreed on the details. According to the Commission, the right should apply for a period of 12 months, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. The EP wanted to extend the period to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wanted several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The final deal splits the difference on the period of extra stay (it will be 9 months), and accepts the various optional limits on the right which the Council wanted.

As for students’ right to work, the current Directive allows them to work for at least for 10 hours a week. The Commission proposed to let them work for 20 hours a week, and to drop the option to ban students from working during their first year of studies. The EP agreed with this, but the Council wanted to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer). Again, the final deal splits the difference: 15 hours’ of work allowed per week, with no labour market preference test.

Another issue was equal treatment of those who work. Currently, the EU’s single permit Directive provides for equal treatment of most third-country nationals who are allowed to work, even if (like students) they were not admitted for employment. However, that Directive excludes au pairs from its scope, and only applies where the relationship is defined as ‘employment’ under national law; this will not always be the case for researchers. The new Directive will extend the equal treatment rules to students and researchers, even if they are not considered employees, and to au pairs whenever they are considered employees. Even non-employees will have equal treatment for goods and services (besides housing and public employment offices). But the new Directive will not waive any of the various exceptions to equal treatment that the single permit Directive currently provides for, besides a few minor exceptions for researchers.

Also, the new Directive will replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion. The EU’s family reunion Directive will apply to Directive will apply to researchers, and many of the restrictions in that Directive will be waived: the minimum waiting period; the need to show a reasonable prospect of permanent residence; the need to show integration requirements for family members before entry (those rules can still be applied after entry; on the CJEU’s interpretation of those rules, see here). There will also be a shorter deadline to process applications, and family members will have a longer period of authorised stay. The EP and Council compromised on the Commission’s proposal to waive the waiting period before family members could access the labour market: the Council wanted to delete this proposed rule entirely, but it agreed to it with a derogation for ‘exceptional circumstances such as particularly high levels of unemployment’. However, the EP got nowhere with its suggestion to extend these more favourable rules to the family members of students as well.

The Commission aimed to simplify the current rules on the movement (‘mobility’) of researchers and students between Member States for the purpose of their studies and research. It also proposed to extend those rules to paid trainees, while the EP wanted to extend those rules to cover unpaid trainees and volunteers as well. However, the Council prevailed on this issue, restricting the scope of these rules to researchers and students (as at present), and adding very complicated details to the proposal on this issue.

Finally, the Commission proposed to introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all). The EP supported an even shorter period to decide on applications (30 days), while the Council wanted to raise the time limit to 90 days. Yet again, these institutions split the difference, with a 90-day general rule and a 60-day rule where institutions have been delegated the powers to decide on applicants.

Comments

The agreed Directive should be appraised in light of the Commission’s impact assessment report for the proposed Directive, which made detailed arguments for the amendments which the Commission proposed. This report provided evidence that students or researchers are attracted to a job-search period after the end of research or studies, as well as by further employment rights for students and for researchers’ family members. Certainly the new Directive addresses all of these issues to some extent.

Conversely, would-be migrants are deterred by the great variety of national rules and the rules on mobility between Member States. On this point, the new Directive will only reduce the variety of national rules modestly, and will install mobility rules more complex than those applying at present.

Presumably, it is also a deterrent for would-be students and researchers who are already legally present to leave the country to make their applications. To address this, the EP wanted to oblige Member States to consider in-country applications for researchers, but ultimately it could not convince the Council (or the Commission) to change the existing rules, which give Member States only an option to allow this.

As for the additional scope of the Directive, it is striking that the new binding rules on admission only apply to trainees who are undertaking or who have completed higher education, and to volunteers in the EU’s own programme. The latter change in the law is necessary in order to ensure the effectiveness of that programme, but the former change in the law is another example of the EU focussing its migration policy upon highly qualified employees. (Remember that according to the preamble to the new Directive, the admission of trainees who have not entered higher education is left entirely to national discretion). It’s unfortunate that at least the rules on equal treatment aren’t binding for all volunteers, school pupils and au pairs, to ensure that these migrants are not exploited and that domestic labour standards are not undercut.

Many of the changes in the Directive intending to attract qualified migrants would make even more sense if they were part of a ‘joined up’ policy – for instance, allowing trainees to make an in-country application for studies or research, or waiving some of the conditions in the EU’s ‘Blue Card’ Directive for highly-skilled migrants (reducing the income threshold, for instance) for graduate trainees, researchers, and students looking for work under this new Directive. Fortunately, there will be a chance to address this issue in the near future, as the Commission will soon be proposing an amendment to the Blue Card Directive (on the reform of that Directive, see here).

Overall, then, the new Directive has gone some distance towards accomplishing its intended objectives, but its effect could be further augmented in the near future by a broader reform of EU law on highly-skilled immigration in general.

After Paris : Justice and Home affairs Council draft Conclusions

ORIGINAL DOCUMENT ACCESSIBLE ON STATEWATCH SITE

(NOTA BENE : Comments will follow on the text finally adopted)

Draft Conclusions of the Council of the EU and of the Member States meeting within the Council on Counter-Terrorism

The Council is appalled by the heinous terrorist attacks which took place in Paris on 13 November 2015 and expresses its deepest condolences to the victims of these attacks, their families and friends. The Council emphasises its solidarity with the people of France and pays tribute to the courage and decisive actions of the French authorities. The attacks were an assault on the European values of freedom, democracy, human rights and the rule of law. This is not the first time that the EU has been confronted with a major terrorist attack and important measures have already been taken. The Council underlines the importance of accelerating the implementation of all areas covered by the statement on counter-terrorism issued by the Members of the European Council of 12 February 2015 and in particular of the measures outlined below.

PNR

The Council reiterates the urgency and priority to finalise an ambitious EU PNR before the end of 2015, which should include internal flights in its scope, provide for a sufficiently long data period during which PNR data can be retained in non-masked out form and should not be limited to crimes with a transnational nature.

Firearms

The Council:

welcomes the adoption of the Implementing Regulation on common deactivation standards on 18 November 2015,
welcomes the presentation by the Commission on 18 November 2015 of a proposal to revise the current Directive on Firearms,

is committed to increasing operational cooperation through Europol under the EU Policy Cycle on serious and organised crime, notably within the Operational Action Plan Firearms. All Member States affected by the problem are invited to join these efforts by the end of 2015,
invites Frontex and Europol to assist the Member States bordering the Western Balkans region with regard to increasing controls of external borders to detect smuggling of firearms.

Strengthening controls of external borders

4. Member States undertake to:

implement immediately the necessary systematic and coordinated checks at external borders, including on individuals enjoying the right of free movement,

on the bases of a quick identification of urgent needs and possible solutions, to be performed by the Commission before the end of 2015, upgrade the Member States border control systems (electronic connection to the relevant Interpol databases at all external border crossing points, automatic screening of travel documents) by March 2016,
in the context of the current migratory crisis, carry out a systematic registration, including fingerprinting, of all migrants entering into the Schengen area and perform systematic security checks by using relevant databases in particular SIS II, Interpol SLTD database, VIS and national police databases, with the support of Frontex and Europol, and ensure that hotspots are equipped with the relevant technology. Europol will deploy guest officers to the hotspots in support of the screening process, in particular by reinforcing secondary security controls,
strengthen the control at the external borders which are most exposed, in particular by deploying rapid border intervention teams (RABITs) and police officers in order to guarantee systematic screening and security checks.

The Council reiterates its Conclusions of 9 November 2015 and invites the Commission to:

include EU nationals in the upcoming Smart Borders proposals and in this context present a proposal for the targeted revision of Art.7(2) Schengen Borders Code regarding systematic controls against relevant databases at EU external borders,
provide, in its proposal to update the Frontex Regulation, a solid legal basis for the contribution of Frontex to the fight against terrorism and organised crime and access to the relevant databases.

Frontex will:

contribute to the fight against terrorism and support the coordinated implementation of the Common Risk Indicators (CRIs) before the end of 2015,
assist the Member States to tighten controls of external borders to detect suspicious travels of foreign terrorist fighters and smuggling of firearms, in cooperation with Europol,
work closely with Europol and Eurojust, in particular in the context of the hotspots, and exchange data with Europol on the basis of the cooperation agreement to exchange personal data. The latter should be concluded and become operational without delay.

Information sharing

7. The Council decides to step up law enforcement cooperation on counter-terrorism (CT):

Member States will instruct national authorities to enter data on all suspected foreign terrorist fighters into the SIS II under Article 36.3, carry out awareness raising and training on the use of the SIS and define a common approach to the use of the SIS II data relating to foreign fighters,

Europol will launch the European Counter Terrorist Centre (ECTC) on 1 January 2016 as a platform by which Member States can increase information sharing and operational coordination with regard to the monitoring and investigation of foreign terrorist fighters, the trafficking of illegal firearms and terrorist financing. The ECTC will provide national CT authorities with enhanced information sharing capacities notably via Focal Point Travellers, the Europol Information System and Europol’s SIENA system reserved for counter-terrorism cases. The new Europol Regulation, on which an agreement should be reached between the co-legislators before the end of the year, should be consistent with the mandate and objectives of the ECTC, including the IRU,
Member States will second CT experts to the ECTC to form an enhanced cross-border investigation support unit, capable of providing quick and comprehensive support to the investigation of major terrorist incidents in the EU. Eurojust should also participate,
The Commission is invited to ensure that Europol is reinforced with the necessary resources to support ECTC and to submit a legislative proposal in order to enable Europol to systematically cross-check the Europol databases against the SIS II as established by Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II),
Member States will make maximum use of these capabilities to improve the overall level of information exchange between CT authorities in the EU. Member States will instruct the relevant national authorities to further increase their contributions to Focal Point Traveller at Europol to reflect the threat and connect to relevant Europol information exchange systems.

Terrorist financing

The Council invites the Commission to present proposals to strengthen, harmonise and improve cooperation between Financial Intelligence Units (FIU’s), notably through the proper embedment of the FIU.net network for information exchange in Europol and ensure their fast access to necessary information, in order to enhance the effectiveness and efficiency of the fight against money laundering and terrorist financing in conformity with Financial Action Task Force (FATF) recommendations, to implement more quickly the asset freezing required by the UN Security Council (Resolution 1373), to strengthen controls of non-banking payment methods such as electronic/anonymous payments and virtual currencies and transfers of gold, precious metals, by pre-paid cards and to curb more effectively the illicit trade in cultural goods.

Criminal justice response to terrorism and violent extremism

9. The Council welcomes the signing in Riga on 22 October 2015 by the EU of the Council of Europe’s Convention on the Prevention of terrorism and of its additional Protocol on Foreign Terrorist Fighters and invites the Commission to present a proposal for a directive updating the Framework Decision on Combating Terrorism before the end of 2015 with a view to collectively implementing into EU law UNSC Resolution 2178 (2014) and the additional Protocol to the Council of Europe’s Convention.

10. Member States will use ECRIS at its full potential. The Council invites the Commission to submit by January 2016 a proposal for the extension of ECRIS to cover third country nationals.

11. The Council invites the Commission to allocate as a matter of urgency the necessary financial resources to implement the Council Conclusions on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism. This should notably support the development of rehabilitation programmes as well as risk assessment tools in order to determine the most appropriate criminal justice response, taking into account the individual circumstances and security and public safety concerns.

Funding

The Council invites Member States to use the Internal Security Fund to support the implementation of these conclusions and to prioritise relevant actions under the national programmes to this effect, and calls on the Commission to prioritise the funding available under centrally managed funds to the priorities identified in these conclusions.

Implementation

In view of its role on strengthening internal security within the Union, COSI shall coordinate the role of the various Council Working Parties and of the EU agencies in the implementation of these Council Conclusions. The Counter Terrorism Coordinator will monitor their implementation.

STUDY: EU COOPERATION WITH THIRD COUNTRIES IN THE FIELD OF MIGRATION

FULL TEXT OF THE STUDY FOR THE EUROPEAN PARLIAMENT CIVIL LIBERTIES COMMITTEE (LIBE) IS ACCESSIBLE HERE (148 PAGES)

AUTHORS: Dr. Paula GARCÍA ANDRADE, Universidad Pontificia Comillas, Madrid, Prof. Iván MARTÍN, Migration Policy Centre, European University Institute, Florence. SUPERVISION Prof. Philippe DE BRUYCKER, Université libre de Bruxelles (ULB) Prof. Cristina GORTÁZAR ROTAECHE, Universidad Pontificia Comillas, Madrid.

EXECUTIVE SUMMARY

EU immigration and asylum policies have to face two major challenges: on the one hand the impending demographic crisis in Europe and on the other hand the migration pressures coming from outside its borders, as the current migration and refugee crises in the Southern Mediterranean and the Middle East exemplify. This makes it indispensable to develop a strong EU external action able to combat smuggling of migrants and trafficking of human beings, promote mobility and facilitate legal migration opportunities to third-country nationals, maximise synergies between migration and development of countries of origin, and enhance protection capacities towards persons in need of international protection, in line with the pillars of the Global Approach to Migration and Mobility (GAMM).

This study aimed at examining the overall strategy of EU cooperation with third countries in the field of immigration and asylum and evaluating its contours and outcomes, proceeds in three sections. Section 1 reviews the main forms of international cooperation adopted by the EU to tackle the multiple dimensions of the migration phenomenon, focusing on those covering enlargement and Eastern Partnership countries, Southern Mediterranean and Sub-Saharan countries, as well as the Greater Middle East. The analysis includes a mapping of the diverse funding sources for EU cooperation with third countries of origin and transit of migratory flows and a brief survey of the main modalities of Member States’ own external cooperation in this field. Section 2 attempts to undertake an assessment of the outcomes and impact of the instruments of EU external cooperation on migration, from a triple perspective: the objectives pursued (substantive dimension), the consequences of the nature of the instruments used (functional dimension), and the challenges of coordination regarding their adoption and implementation (institutional dimension). Case studies on Moldova, Morocco and Tunisia seek to provide empirical insight into the topics examined. Finally, section 3 formulates conclusions contributing to the debate on the configuration and impact of EU cooperation with third countries in the field of migration, and proposes a set of concrete recommendations for further action.

1. The toolbox of EU external cooperation with third countries in the field of immigration and asylum Continue reading “STUDY: EU COOPERATION WITH THIRD COUNTRIES IN THE FIELD OF MIGRATION”

Les migrants en situation irrégulière, sujets d’une discrimination légale : l’exemple du droit à la liberté et à la sûreté

ORIGINAL PUBLISHED ON CDRE SITE ON 19 OCTOBER 2015

Par Chloé Peyronnet, EDP (Lyon)

Pendant que la « crise » des réfugiés occupe l’agenda politique et médiatique européen, la politique de retour de l’Union européenne continue à s’appliquer aux migrants non éligibles à une protection internationale. La directive 2008/115/CE a fait l’objet d’une nouvelle décision préjudicielle en interprétation (C-290/14). Cette dernière confirme une ligne jurisprudentielle faisant primer une conception sécuritaire de l’effet utile sur les droits fondamentaux des intéressés, en l’occurrence le droit à la liberté et à la sûreté. Victimes d’un déni d’habeas corpus, parfois d’une double-peine et pouvant cumuler les statuts de non-éloignables et d’indésirables, les migrants en situation irrégulière se voient appliqué un droit à la liberté et à la sûreté amputé qui s’avère de facto discriminatoire.

En janvier 2015, le nombre de morts en mer Méditerranée est devenu trop important pour être ignoré. Depuis lors, le sort des migrants sans-papiers cherchant à regagner le territoire des États-membres de l’Union européenne semble être au centre de l’attention médiatico-politique. En réalité, malgré l’emploi fréquent du terme générique de « migrants », seuls les demandeurs d’asile ont l’heur d’être placés sous le feu des projecteurs. Les migrants familiaux, les migrants économiques et les migrants potentiellement éligibles à une protection internationale dont ils ne peuvent faire la demande sont de facto exclus du paysage journalistique et de l’agenda gouvernemental. Sans s’attarder sur l’extrême porosité des situations humaines recouvertes par ces catégories juridiques, l’on peut d’ores et déjà souligner que les problématiques de la gestion de l’immigration irrégulière n’ont pas disparu avec l’augmentation massive du nombre de demandeurs d’asile (qui, par définition, ne peuvent être qualifiés de migrants irréguliers tant que leur demande n’a pas été définitivement rejetée). En effet, dans le cadre de l’espace Schengen, tout migrant sans-papiers qui n’a pas obtenu de protection internationale est en situation irrégulière et a dès lors vocation à être « retourné » vers le territoire d’un Etat tiers, qu’il s’agisse de son Etat d’origine ou d’un Etat lié par un accord de réadmission avec l’Union européenne ou l’un de ses Etats membres.

Au sein de l’espace Schengen, une harmonisation minimale a été réalisée par la directive 2008/115/CE du 16 décembre 2008 (directive « retour »), dont l’article 15 encadre la « rétention à des fins d’éloignement » (qualifiée en droit français de « rétention administrative »). Cette privation de liberté, qui se singularise par son appartenance à la matière administrative, est applicable aux migrants en situation irrégulière faisant l’objet d’une procédure de retour (initiée en droit français par une obligation de quitter le territoire français ou une mesure d’expulsion). Exclue de la matière pénale avec la bénédiction de la Cour EDH, cette mesure est une éloquente illustration des « discriminations légales » dont font l’objet les migrants en situation irrégulière quant à la protection de leurs droits fondamentaux, dont la vocation universelle s’avère parfois chimérique.

Entre déni d’habeas corpus et double peine Continue reading “Les migrants en situation irrégulière, sujets d’une discrimination légale : l’exemple du droit à la liberté et à la sûreté”