EU migration policy: comments on the results of the latest European Council

Steve Peers

Alongside ‘Grexit’ and ‘Brexit’, the upsurge in immigration to the European Union is a further crisis which the EU has to juggle simultaneously. The first round of EU reactions to the crisis culminated in the emergency EU summit (‘European Council’) in April. I discussed the results of that summit here. Subsequently, the Commission released its ‘Agenda’ on EU migration in mid-May (see discussion here), and its detailed proposals later that month (see discussion here). Last week the European Council discussed immigration issues again, and came to a number of conclusions. This blog post sets out those conclusions, with my comments annotated. (I have left out the third part of the conclusions, which vaguely promise more cooperation with third countries.)

It’s interesting to compare the final text with the last draft of the summit conclusions (see full text here). To make that comparison easy, I have indicated below what changed between the penultimate and final versions of the text. (Underlined words were added to the final version; words in strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced and geographically comprehensive approach to migration, based on solidarity and responsibility. Following the decisions taken by the European Council last April, concrete measures have been taken to prevent further loss of life at sea, to find new ways of confronting smugglers and to intensify cooperation with countries of origin and transit, while respecting the right to seek asylum. The launch of the EUNAVFOR MED mission, decided on 22 June by the Council, is an important contribution in this respect. Operational action to tackle the traffickers and smugglers in accordance with international law is an essential part of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its second and third phases (where the boats are destroyed) cannot get started until the Libyan government or the Security Council endorse the operation. For details and criticism see here.

2. Further to the Commission's European Agenda on Migration, work should be taken forward on all dimensions of a comprehensive and systemic approach.

The summit conclusions in fact address much of the detail of the Agenda.

3. Wider efforts, including the reinforcement of the management of the Union’s external borders, are required to better contain the growing flows of illegal migration. Today, the European Council focused on three key dimensions which must be advanced in parallel: relocation/resettlement, return/readmission/reintegration and cooperation with countries of origin and transit. The Council will regularly assess progress in all three strands and report back later in the year.

As noted above, I have omitted the third dimension (cooperation with countries of origin and transit) from this blog post.

Relocation/resettlement

4. In the light of the current emergency situation and of our commitment to reinforce solidarity and responsibility, and in line with its April decision in all its regards, including paragraph 3, the European Council agreed on the following interlinked measures to help 60.000 people:

Paragraph 3 of the April conclusions refers to the EU interception and search and rescue missions in the Mediterranean. Odd that such missions dare not speak their name in these latest conclusions.

a) the temporary and exceptional relocation over two years from the frontline Member States Italy and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States will participate;

The final version of the conclusions adds a footnote stating that the UK will not participate. The number of 40,000 matches the number in the Commission’s proposal. So does the two-year time-frame, and the focus on Italy and Greece. The reference to ‘persons in clear need of international protection’ suggests that the focus will remain on Syrians and Eritreans (as the Commission proposed), as refugee claims from these two nationalities have a very high success rate.

b) the rapid adoption by the Council of a Decision setting up a temporary and exceptional mechanism to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States;

There is a commitment to adopt a legally binding text, although presumably its content will differ greatly from the Commission proposal, in particular because many Member States dislike the idea (or the detail) of the Commission’s proposals on distribution. The added agreement that the distribution will be agreed by ‘consensus’ means effectively that the numbers accepted in each Member State will be voluntary, although the Treaty calls for qualified majority voting on this issue. The added reference to ‘specific situations’ is (according to press briefings) intended to exempt Hungary and Bulgaria from obligations, in light of the large number of asylum-seekers they currently receive. Obviously it is hard to see how the legally binding target of 40,000 asylum-seekers can actually be met if Member States only have to volunteer to take the relevant numbers. If a Decision with such an obligation is adopted but the offers of admission fall short of 40,000, there could be an interesting legal question as to whether and how the numbers could still be enforced.

c) the setting up of reception and first reception structured border zones and facilities in the frontline Member States, with the active support of Member States' experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants ("hotspots"). This will allow to determine those who need international protection and those who do not. The Commission will draw up, in close cooperation with the hosting Member States, a roadmap by July 2015 on the legal, financial and operational aspects of these facilities;

The reference to ‘structured border zones’ in the earlier draft has been altered, perhaps because some perceived it as a form of quarantine. Frontex is the EU borders agency, and the EASO is the EU asylum support agency. They don’t have powers to fingerprint migrants etc as such, but they can help coordinate Member States’ actions. On the other hand, it’s not clear why Europol, the EU police agency, needs to be involved, and indeed the conclusions seem to call for it to exceed its legal powers. It has a potential role in investigating smugglers, but the conclusions refer only to its involvement in an immigration law process.

Fingerprinting of irregular migrants who cross the external borders, as well as asylum-seekers, is a long standing EU law obligation in the Eurodac Regulation, but frontline Member States have often been accused of not applying it. If more such people are fingerprinted, then it will be easier to guarantee their return from other Member States like the UK under the EU’s Dublin rules on asylum responsibility, if those migrants travel to another Member State and apply for asylum there. The Commission recently released a paper on coercive methods to fingerprint migrants, discussed here.  

d) the immediate provision of enhanced financial assistance to the frontline Member States to help alleviate the costs of receiving and processing applications for international protection;

An emergency EU budget increase has already been approved.

e) the agreement that all Member States will participate including through multilateral and national schemes in the resettling of 20.000 displaced persons in clear need of international protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue, which has already been adopted. Resettlement means that the persons concerned are moved straight from refugee camps in countries like Lebanon or Turkey. In fact the wording (‘displaced persons’) also covers Syrians who have fled to camps elsewhere within Syria. Legally speaking this group of people aren’t ‘refugees’ since they haven’t left their home country; international law refers to people who have fled within their own countries but who still have great protection needs as ‘displaced persons’ instead. They could qualify as ‘refugees’ once reaching the EU, however, since they would necessarily then have left Syria. The UK has pledged a very small increase in the small numbers of refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission and reintegration policies for those not qualifying for protection are an essential part of combating irregular illegal migration and will help discourage people from risking their lives. All tools shall be mobilised to promote readmission of irregular illegal migrants to countries of origin and transit, building on the ideas presented by the Commission at the Council on 16 June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address objections that the word ‘illegal’ is the wrong term to use. There is a footnote referring to the letter and it can be found via Google, but it is hardly transparent not to attach it as an Annex to the Conclusions. It’s not hyperlinked to the conclusions either. But you can follow this link for the text of the Commission letter and discussion of it.

It must be noted that this section only applies to people who do not qualify as refugees or for some other form of protection. Some press stories had suggested, on the basis of leaked drafts of the conclusions, that the EU wants to ‘send all the migrants back’. This is patently false: this section is clearly limited in scope (‘those not qualifying for protection’) and the first section of the conclusions not only shows an intention to relocate people needing protection within the EU but also to bring more of them to the EU. Since a significant proportion of migrants come from Syria and Eritrea, and a huge proportion of their asylum claims are successful, anyone who claims that ‘the vast majority of people crossing the Mediterranean are economic migrants’ is quite simply lying.

In particular: a) high-level dialogues with the main countries of origin of irregular migrants should be launched by the High Representative as soon as possible, in close cooperation with the Member States. The Council, together with the Commission, will prepare a global package to support the negotiations with the third countries concerned;

Most of the issues here are not foreign policy issues as such, so the High Representative should only be discussing them in her role as the coordinator of her colleagues in the Commission, not as foreign policy representative. So this looks like an internal Commission power grab, although it’s probably also true that she will come with more political authority than the Home Affairs Commissioner. There may of course be a corresponding power struggle between national foreign and interior ministries here.

b) the Commission will ensure that readmission commitments are implemented effectively as soon as possible, notably those under the Cotonou Agreement, and that ongoing negotiations on readmission agreements are accelerated and concluded as soon as possible, while new negotiations will be launched with other third countries;

The ongoing negotiations are with Belarus (nearly complete), Morocco and Tunisia. Talks with Algeria and China were approved years ago, but never started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean and small Pacific island States, although obviously the conclusions are referring only to African states. 

c) building on the "more-for-more" principle, EU assistance and policies will be used to create incentives for implementing existing readmission agreements and concluding new ones. Commitments set out in trade agreements regarding the temporary presence of persons for the provision of services should be used as an incentive to conclude readmission agreements; development policy tools should reinforce local capacity building, including for border control, asylum, counter-smuggling and reintegration;

The EU has concluded readmission treaties with most countries to the east and south-east by offering visa facilitation deals, and in some cases the long-term prospect of a visa waiver. It has also offered visa facilitation to Morocco and Tunisia. It’s clear from the other recent documents that the EU doesn’t want to offer visa facilitation to sub-Saharan African countries, hence the quite new idea of offering them admission of service providers instead. Interestingly, the market access aspects of service provision apply to all Member States (ie, including the UK), although the immigration law aspects (such as facilitated visas and permits just for this category of persons) arguably fall within the scope of immigration law, where the UK opt-out applies. The Commission’s migration agenda had referred to plans to propose rules on this issue, but it had not linked them to readmission.

As for development policy cash, this also applies to all Member States, unless some external money in the home affairs budgets can be used. This phrase could also refer to national development policy budgets. The important question is whether this is new money, or will be diverted from building schools or hospitals, or aiding human rights defenders.  

d) Member States will fully implement the Return Directive, making full use of all measures it provides to ensure the swift return of irregular migrants; return decisions issued by the Member States will be introduced in the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but in fact the Commission paper referred to above urges Member States to lock up irregular migrants for as long as possible and to use derogations in that Directive, which could justify limiting judicial review, and holding irregular migrants (including families) in prisons, mixed in with the general prison population of convicted criminals. Further comments on this here.

Some or all entry bans are already introduced in the Schengen Information System (SIS), and the Commission plans to propose a legal obligation that all of them will be. But introducing all return decisions in the SIS is quite new, since not all return decisions result in entry bans. In fact, this is the first new category of data to be added to the SIS since it was established. It will take some time and money (as well as new EU legislation) to set this up.

Note that the UK will not have access to this data, since it does not participate in the immigration-related aspects of the Schengen system. It does have access to the separate Eurodac database, of people who applied for asylum or crossed the borders irregularly in another Member State, although it can only access this is those people then apply for asylum in the UK.

e) the Commission will set out by July 2015 how Frontex will bring immediate support to frontline States on return. The Commission has announced its intention to propose to amend the Frontex Regulation to strengthen the role of Frontex, notably so that it can initiate return missions;

The Commission paper also wants to give Frontex a role in going to third countries and arranging return flights, and in expelling people from a single Member State. The last set of amendments to the Frontex Regulation in 2011 allow Frontex to have its own assets. Perhaps ‘Air Frontex’ – the one airline you never want to travel on – is coming?

f) in order to accelerate the treatment of asylum applications, the Commission will set out by July 2015 measures to be taken to use EASO to coordinate the implementation of the "safe country of origin" provisions in the Asylum Procedures Directive. The Commission has indicated its intention to strengthen the "safe country of origin" provisions in the Asylum Procedures Directive, including the possible establishment of a common EU list of safe countries of origin;

It’s not clear what EASO will be doing here. It can’t decide on asylum applications, but only give guidance. As for the legislative proposal, the Council tried to agree on a common list of safe countries of origin in 2005, but failed epically. It’s not so problematic to include countries where the failure rate is 99%, but becomes difficult to include countries where even 10% or 20% of applications are successful – since that is a lot of people whose claims won’t be adequately assessed.

g) adequate means will rapidly be made available in support of an effective EU return policy; furthermore, the Commission is invited to make proposals in this respect in the context of the 2016 EU budget, and to set up a dedicated European Return Programme.

This suggests more cash will soon be available for removals. It looks as if the ‘European Return programme’ is simply going to be an official name for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests that it was a failure on immigration issues, because Member States wouldn’t agree to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit conclusions still refer to adopting a binding measure requiring the relocation of 40,000 people. If Member States do end up relocating 40,000 refugees, there’s not much point quibbling about exactly how they did it. However, the replacement of quotas by voluntary offers makes it less likely that this number will be achieved, and in that case the Council might decide not to adopt the Decision after all.  

Having said that, even if the number of people relocated ends up at 20,000 or 30,000, instead of 40,000, that will contribute to reducing the pressure on Greece and Italy. It will be significantly more than the piddling number of people relocated in the past. The very existence of this commitment is an implicit admission that the Dublin system is a failure. And the commitment to resettle 20,000 people is a bigger contribution than the EU has made before in that context too.

All this is counterbalanced by the decisions on return and readmission. It seems that there is a quid-pro-quo between a more generous policy on asylum and a more restrictive policy on irregular migration. Certainly this part of the conclusions shows the importance of implementation of EU law by the Member States. The Commission has committed itself to encouraging Member States to apply the Directive as restrictively as possible, so it will fall to NGOs and migrants’ legal advisers to monitor what goes in practice, and challenge it if necessary.

‘The Commissioner suggested that we do it’ is not in any way a sufficient legal reason to lock up families together with convicted prisoners, while limiting judicial review. Rather, any Member State wanting to apply exceptions from detention standards in the Returns Directive has to show that an ‘exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff’, presumably separately (ie it’s possible that the facilities are overburdened but the judges aren’t, or vice versa). It must also end the derogation as soon as conditions have changed, and also inform the Commission. CJEU case law (Kamberaj) suggests, by analogy, that the decision to lower detention standards is invalid unless that latter procedural requirement is fulfilled.  There’s a good argument that derogation clause is itself invalid, as a breach of the Charter rights to family life, access to court and the rights of the child. At the very least it must be interpreted in light of those Charter rights, and the similar protections set out in Article 5 of that Directive.

Barnard & Peers: chapter 26

Photo: Zaatari refugee camp in Jordan, by US Department of State

Jump before you’re pushed: the CJEU rules on the voluntary departure of irregular migrants

Steve Peers

For the first time, the CJEU ruled yesterday (in its judgment in Zh and O) on the provisions of the EU’s Returns Directive (the main set of rules governing the expulsion of irregular non-EU migrants) concerning ‘voluntary departure’. The word ‘voluntary’ is a euphemism here, of course:  there’s still a legal obligation for the migrant to leave, underpinned by the threat of force. But nevertheless it still makes a big difference to the people concerned whether they have a chance to leave the country under their own steam. If they aren’t given that chance, they are likely to be woken up in their homes in the middle of the night, arrested, detained in jail, and restrained on their journey to their country of origin or transit by an armed officer. Some are injured or die during this process. So it’s far better to jump than to be pushed.

But when do irregular migrants have the choice to do so? The Returns Directive makes it the normal rule to give them a period for voluntary departure, for a period of between seven and thirty days.  This time must be extended if necessary in individual cases, for instance whether there are children in school. But there are exceptions: Member States may decide not to grant this period, or to curtain it to less than seven days, in three cases: where there’s a ‘risk of absconding’; where ‘an application for a legal stay has been dismissed as manifestly unfounded or fraudulent’; and if the person concerned ‘poses a risk to public policy, public security or national security’.

If one of these exceptions apply, the removal must then be carried out by national officials, and the Directive in principle requires the migrant to be issued with an entry ban. (It’s still an option for a Member State to issue an entry ban in cases of voluntary departure). Migrants who have the chance of voluntary departure are entitled to family unity, emergency health care and education in the meantime, and it’s implicit that they would not normally be detained.

The Zh and O judgment concerns the third of the exceptions from the rule of giving a period for voluntary departure: the exception for ‘public policy’, et al. Last year’s judgment in Mahdi, discussed here, touched on the first exception (the ‘risk of absconding’), in a different context (the grounds for detention). Zh and O was about two separate cases, and the Dutch courts asked three questions to clarify the meaning of the public policy exception.

Judgment

The national court wanted to know whether the ‘public policy’ exception had the same meaning as the similar provisions in the EU’s citizens’ Directive, and also the EU Directives on family reunion and long-term resident non-EU citizens. First of all, the CJEU said that the exception had to be interpreted ‘strictly’. It confirmed that the three exceptions to the rule of voluntary departure were the ‘only’ ones allowed. A Member State has to ‘prove’ that there is a risk to public policy. Secondly, the voluntary departure rule aimed, among other things, to protect the ‘fundamental rights’ of the persons concerned during the expulsion process.

So while Member States ‘retain the freedom’ to decide on the concept of public policy, they did not have full latitude to determine the concept without any control by the Court. Here the CJEU referred ‘by analogy’ to case law on the EU citizens’ Directive. So the exception had to be applied on a ‘case-by-case basis’, to decide if the ‘personal conduct’ of the migrant ‘poses a genuine and present risk to public policy’. This meant the suspicion of committing a criminal act, or even a criminal conviction, could not by itself justify the conclusion that a ‘public policy’ risk exists.

On the other hand, the ‘public policy’ exception could still apply where an appeal against a criminal conviction had not yet been decided, or where there was no conviction, as long as ‘other factors’ justified the use of that exception. What are those other factors? The Court referred to the ‘nature and seriousness’ of the act and ‘the time which has elapsed since it was committed’. So the national court had to consider that in one case, the migrant was actually not trying to stay in the Netherlands without authorisation, but was on his way out (travelling to Canada) when he was stopped. In the other case, the migrant had been accused of domestic abuse, but it was relevant that there was nothing to substantiate that accusation.

Finally, the Court ruled that there did not have to be a separate assessment of the question of limiting voluntary departure; that issue could be considered when making the initial return decision. The Court reiterated its prior judgment in Boudjlida (discussed here), when it ruled that the migrant must have the opportunity to be heard on the question of whether voluntary departure ought to be granted.

Comments

The Court’s analysis in this judgment has broader implications. First of all, unlike the Advocate-General’s opinion, the Court drew an analogy between the concept of ‘public policy’ in the EU citizens’ Directive and in the Returns Directive. It should follow that the public policy exceptions in the EU’s legal migration legislation (and not just in the two other Directives referred to by the Court) should be similarly interpreted.

Secondly, the Court’s general approach to the exceptions to the rule of voluntary departure is surely equally relevant to the other two exceptions from that rule: the risk of absconding and the manifestly unfounded or fraudulent application to stay. So those other exceptions must be strictly interpreted; Member States have the burden of alleging them; and migrants can object to their application during a form of hearing.

Thirdly, a criminal conviction or suspicion does not by itself trigger the ‘public policy’ exception. But they can be considered along with other factors. The Court did not suggest that the factors which it referred to (departing the country, limited credibility of an allegation) were the only factors to take into account. So there might well be others in other cases. Presumably, for instance, it would conversely be relevant if a migrant’s battered wife has been admitted to hospital. A prior history of irregular migration or criminal convictions (and conversely, the absence of any such prior history) might also be relevant.

More broadly, the Court’s approach, expressly linking the opportunity for voluntary departure with the protection of human rights, properly takes account of the dramatic impact of forced removal on individual migrants. Its judgment does not limit the underlying obligation for irregular migrants to leave the European Union. But it rightly tempers that obligation with a consideration for the basic humanity of the people being removed.

 

Barnard & Peers: chapter 26

The Commission’s new EU Migration Strategy: Waiting for the Great Leap Forward

 

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.

Content

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.

Immediate action

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.

Irregular immigration

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.

Border management

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.

Asylum

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.

Legal migration

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, see here). 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.

Long-term objectives

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.  

Comments

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.

 

Barnard & Peers: chapter 26

Commission strategy on EU immigration policy

The following is a leaked draft of the Commission communication on the EU migration agenda which is due to be published on Wednesday 13th May. It might be changed before publication and may also be missing some text.

 

I.   Introduction

Throughout history, people have migrated from one place to another. The reasons can vary greatly: political oppression, war, poverty, entrepreneurship, family reunification – every person's migration tells its own story. Migration impacts society in many different ways and calls for a variety of responses. This Agenda brings together the different steps the European Union should take now, and in the coming years, to meet this challenge.

The immediate imperative must be the duty to protect those in need.  The plight of thousands of migrants putting their lives in peril to cross the Mediterranean has shocked us all. As a first and immediate response, the Commission put forward a ten point plan for immediate action. The European Parliament and the European Council have lent their support to these plans and Member States have also committed to concrete steps to avert further loss of life.

The response was immediate but insufficient. This cannot be a one-off response. Emergency measures have been necessary because the collective European policy on the matter has fallen short. While most Europeans have responded to the plight of the migrants, the reality is that across Europe, there are serious doubts about whether our migration policy is equal to the pressure of thousands of migrants, to the need to integrate migrants in our societies, or to the economic demands of a Europe in demographic decline.

To try to halt the human misery created by those who exploit migrants, we need to exploit the EU's global role and wide range of tools to address the root causes. Some of these are deep-seated but must be addressed. Globalisation and the communication revolution have created opportunities and raised expectations. Others are the consequence of wars and crises from Ukraine to the Middle East and North Africa. The impact of global poverty and conflict do not end at national frontiers. Europe should continue to be a safe haven for those fleeing persecution but it is also  an attractive destination for economic migrants. Upholding our international commitments and values while protecting our borders and at the same time creating the right conditions for Europe's economic prosperity and societal well-being is a difficult balancing act that requires coordinated action on the European level.

This calls for a set of core measures and a consistent and clear common policy. We need to restore confidence in our ability to bring together European and national efforts to address migration, to meet our international and ethical obligations and to work together in an effective way. A European solution is essential because these are challenges that no Member State can effectively address alone. But it is clear that we need a new approach. This requires using all policies and tools at our disposal – combining internal and external policies to best effect. This also requires us to show solidarity and shared responsibility. All actors, Member States and EU institutions, need to work together to make a common European migration policy a reality.

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II.    Immediate action

The first part of this European Agenda on Migration responds to the need for action in response to the human tragedy in the Mediterranean. The European Council statement of 23 April 2015^[1] and the European Parliament Resolution a few days later,^[2] illustrated the consensus for rapid action to save lives and to step up EU action. This swift response must also serve as the blueprint for the EU's reaction to future crises, whichever part of the common external border comes under pressure.

Saving lives at sea

Europe cannot stand by whilst lives are being lost at sea. Search and rescue efforts will be stepped up to restore the level of intervention provided under the former Italian 'Mare Nostrum' operation.  To triple the budget for the Frontex joint-operations Triton and Poseidon, the Commission has already presented an amending budget for 2015 and will present its proposal for 2016 by the end of May. When implemented, this will expand both the capability and the geographical scope of these operations, so that Frontex can fulfil its dual role of coordinating operational border support to Member States under pressure, and helping to save the lives of migrants at sea^[3]. In parallel to this increase in EU funding, assets (ships and aircrafts) are being deployed by several Member States. This welcome solidarity will need to be maintained for as long as the migratory pressure persists.

[explanation of new Triton mission to go here]

Targeting criminal smuggling networks

The criminal networks which exploit vulnerable migrants must be targeted. The High Representative/Vice President (HR/VP) has already presented options for possible Common Security and Defence Policy (CSDP) operations to systematically identify, capture and destroy vessels used by smugglers. Such action under international law will be a powerful demonstration of the EU's determination to act.

More will be done to pool and better use information to identify and target smugglers. Europol will immediately strengthen its recently established joint maritime information operation (JOT MARE) – the focal point on smuggling. The result will be a single entry point for inter-agency cooperation on smuggling.[4] Frontex and Europol will also develop profiles of vessels which could be used by smugglers, following patterns to identify potential vessels and monitor their movements. Finally, Europol will identify illegal internet content used by smugglers to attract migrants and refugees, and request its removal.

Responding to high-volumes of arrivals within the EU: Relocation

Member States' asylum systems today face unprecedented pressure and, with the summer arriving, the flow of people to frontline Member States will continue in the months to come. The EU should not wait until the pressure is intolerable to act: the volumes of arrivals mean that the capacity of local reception and processing facilities is already stretched thin. To deal with the situation in the Mediterranean, the Commission will, by the end of May, propose triggering the emergency response system envisaged under Art.78.3 of the Treaty. The proposal will include a distribution mechanism for persons in clear need of international protection to ensure a fair and balanced participation of all Member States to this common effort. The receiving Member State will be responsible for the examination of the application in accordance with established rules and guarantees. A redistribution key based on criteria such as GDP, size of population, unemployment rate and past numbers of asylum seekers can be found in Annex.

This step will be the precursor of a lasting solution. The EU needs a permanent system for sharing the responsibility for large numbers of refugees and asylum seekers among Member States.  The Commission will table legislation by the end of 2015 to provide for a mandatory and automatically-triggered relocation system to distribute those in clear need of international protection within the EU when a mass influx emerges. The scheme will take account of the efforts already made on a voluntary basis by Member States. 

Pending the implementation of these two measures, Member States will need to show solidarity and redouble their efforts to assist those countries on the frontline.

A common approach to granting protection to displaced persons in need of protection: Resettlement

In addition to the relocation of those already on EU soil, the EU has a duty to contribute its share in helping displaced persons in clear need of international protection. This is a joint responsibility of the international community, with the United Nations High Commissioner for Refugees (UNHCR) given the task of identifying when people cannot stay safely in their own countries. Such vulnerable people cannot be left to resort to the criminal networks of smugglers and traffickers. There must be safe and legal ways for them to reach the EU. The UNHCR has endorsed a target of 20,000 resettlement places for the EU per year by the year 2020.^[5] Some Member States have already made a major contribution to global resettlement efforts. But others offer nothing – and in many cases they are not making an alternative contribution in terms of receiving and accepting asylum requests or helping to fund the efforts of others.

By the end of May, the Commission will make a Recommendation proposing an EU-wide resettlement scheme to offer xxx places. This scheme will cover all Member States, with distribution criteria that can be found in the Annex, such as GDP, size of population, unemployment rate and past numbers of asylum seekers and will take account of the efforts already made on a voluntary basis by Member States. The EU budget will provide dedicated funding of an extra €50 million in 2015/2016 to support this scheme. If necessary this will be followed up with a proposal for a binding and mandatory legislative approach beyond 2016.  In addition to this common effort, the Commission calls on Member States to make use of the existing possibilities offered under the Asylum Migration and Integration Fund and pledge further resettlement places under their national programming, with the funding swiftly adjusted.

In addition, Member States should use the other legal avenues available to persons in need of protection should be used to the full, including private/non-governmental sponsorships and humanitarian permits, and family reunification clauses.

Working with third countries to tackle migration upstream

The EU can also take immediate action to intervene upstream in regions of origin and of transit. The Commission and the European External Action Service (EEAS) will work together with partner countries to put in place concrete measures to process migrants before they reach the EU's borders.

First, the EU should step up its support to the countries bearing the brunt of displaced refugees. Regional Development and Protection Programmes will be set up or deepened, starting in North Africa and the Horn of Africa. €30 million will be made available in 2015/2016 and should be complemented by additional contributions from Member States.

Second, a pilot multi-purpose centre will be set up in Niger by the end of the year. Working with the International Organisation for Migration (IOM), the UNHCR and the Niger authorities, the centre will combine the provision of information, local protection and resettlement opportunities for those in need. Such centres in countries of origin or transit would help to provide a realistic picture of the likely success of migrants' journeys, and offer assisted voluntary return options for irregular migrants.

Third, migration will become a specific component of ongoing Common Security and Defence Policy (CSDP) missions already deployed in countries like Niger and Mali, which will be strengthened on border management. A dedicated summit will be organised in Malta in the autumn with key partners, including  the African Union, to develop a common approach with the region addressing the causes of irregular migration and the protection of people in need, as well as smuggling and trafficking of people.

This work will be closely connected to broader political initiatives to promote stability. Of particular importance is the action led by the HR/VP to address the situation in Libya, with full support to the UN-led efforts to encourage the process of setting up of a Government of National Unity. Persistent efforts to address the crisis in Syria have been accompanied by €3.6 billion in humanitarian, stabilisation and development assistance inside Syria and to help Syrian refugees in countries like Lebanon, Jordan, Turkey and Iraq These are only the most obvious of the many political crises which will have a profound impact on migration to the EU in the months to come.

 

Using the EU's tools to help frontline Member States

More will be done to help deal with the immediate challenge faced by Member States in the frontline of migrant arrivals.

First, the Commission will set up a new 'Hotspot' approach, where the European Asylum Support Office, Frontex and Europol will work on the ground with frontline Member States to swiftly identify, register and fingerprint incoming migrants. The work of the agencies will be complementary to one another. Those claiming asylum will be immediately channelled into an asylum procedure where EASO support teams will help to process asylum cases as quickly as possible.  For those not in need of protection, Frontex will help Member States' in coordinating the return of irregular migrants. Europol and Eurojust will assist the host Member State with investigations to dismantle the smuggling and trafficking networks.

Second, the Commission will mobilise an additional €60 million in emergency funding, including to support the reception and healthcare system of Member States under particular pressure^[6]. An evaluation of needs is under way.

 

Key Actions

·         A funding package to triple the allocation for Triton and Poseidon in 2015-16 and to finance an EU-wide resettlement scheme. ·         Immediate support to a possible CSDP mission on smuggling migrants. ·         A proposal to activate the emergency mechanism under article 78(3) TFEU by the end of May, on the basis of the annexed distribution key. ·         A proposal for a permanent common EU system for relocation by the end of 2015. ·         A Recommendation for an EU resettlement scheme by the end of May followed if required by a proposal for more permanent approach beyond 2016. ·         €30 million for Regional Development and Protection Programmes. ·         Pilot Multi-purpose Centre established in Niger by the end of 2015.

 

 

II. Four pillars to manage migration better

The migration crisis in the Mediterranean has put the spotlight on immediate needs. But it has also revealed much about the structural limitations of EU migration policy and the tools at its disposal.  This is an opportunity for the EU to face up to the need to strike the right balance in its migration policy and send a clear message to citizens that migration can be better managed collectively by all EU actors.

The EU must continue to offer protection to those in need. It must also recognise that the skills needed for a vibrant economy cannot always immediately be found inside the EU labour market or will take time to develop. Migrants who have been legally admitted by Member States should not be faced with reluctance and obstruction – they should be given every assistance to integrate in their new communities. This should be seen as central to the values Europeans should be proud of and should project to partners worldwide.

But by the same token, the EU needs to draw the consequences when migrants do not meet the criteria to stay. Unsuccessful asylum claimants who try to avoid return, visa overstayers, and migrants living in a permanent state of irregularity constitute a serious problem. This corrodes confidence in the system. It offers strong arguments for those looking to criticise or stigmatise migration. It makes it harder to integrate those migrants staying in the EU as of right.

This Agenda sets out four levels of action for an EU migration policy which is fair, robust and realistic. When implemented,[7] they will provide the EU with a migration policy which respects the right to seek asylum, responds to the humanitarian challenge, provides a clear European framework for a common migration policy, and stands the test of time.

 

 

II.1    Reducing the incentives for irregular migration

There are many different motivations behind irregular migration. But often, it ends in deep disappointment. The journey is often far more dangerous than expected, often at the mercy of criminal networks who put profit before human life. Those who fail the test of asylum face the prospect of return. Those who live a clandestine life inside Europe have a precarious existence and can easily fall prey to exploitation. It is in the interests of all to address the root causes which cause people to seek a life elsewhere, to crack down on smugglers and traffickers, and to provide clarity and predictability in return policies.

Addressing the root causes in third countries

Many of the root causes of migration lie deep in global issues which the EU has been trying to address for many years. Migration should be recognised as one of the many factors which show an active and engaged EU external policy is of direct importance to EU citizens. Civil war, persecution and climate change all feed directly and immediately into migration, so the prevention and mitigation of these threats is of primary importance for the migration debate. This will be a major theme of the Strategic Review initiated by the HR/VP to assess the impact of changes in the global environment, as well as the forthcoming review of European Neighbourhood Policy.

Partnership with countries of origin and transit is crucial and there are a series of established bilateral and regional cooperation frameworks on migration in place (Rabat Process, Khartoum Process, the Budapest Process, the EU-Africa Migration and Mobility Dialogue). These will be enriched by stepping up the role on migration of EU Delegations in key countries. Delegations will in particular report on major migratory related developments in the host countries, contribute to mainstream migration issues into development cooperation and reach out to host countries to ensure coordinated action. European migration liaison officerswill be seconded in EU Delegations in key third countries, in close cooperation with the Immigration Liaison Officers Network[8]  and with local authorities and civil society, with the purpose of gathering, exchanging and analysing information. As a first step, liaison officers will be seconded to Egypt, Algeria, Morocco, Tunisia, Niger, Senegal, Sudan, Turkey, Pakistan, Lebanon and Jordan,

A good example of where there is much to be gained from stepping up cooperation is Turkey. Since the beginning of 2014, Turkey has received €79 million to contribute to its efforts to deal with the pressure on its refugee management system and to help prevent hazardous journeys in the Eastern Mediterranean. Deploying a dedicated Frontex liaison officer in Turkey will take cooperation one step further.

With a budget allocation of €82 billion for the 2014-2020 period, EU external cooperation  assistance plays an important role in tackling global issues like poverty, insecurity, inequality and unemployment. This includes support in some of the greatest problem zones.

As well as addressing long-term root causes, the EU helps to mitigate the impact of crisis at a local level. This needs a sustained effort: more than 70% of the world's refugees are trapped in situations of displacement for five years or more. The EU is a leading international donor for refugees with €200 million in ongoing projects from development assistance and over €1 billion of humanitarian assistance dedicated to refugees and Internally Displaced Persons  since the beginning of 2014. A strategic reflection is now under way to maximise the impact of this support, with results expected in 2016.

The fight against smugglers and traffickers

Action to fight criminal networks of smugglers and traffickers is first and foremost a way to prevent the exploitation of migrants by criminal networks.[9] It would also act as a disincentive to irregular migration. The goal must be to transform smuggling networks from ‘low risk, high return' operations for criminals into ‘high risk, low return’ ones. A action plan will be brought forward by the Commission by the end of May.

Cooperation with third countries is of critical importance. Most of the smugglers are not based in Europe, and those who are arrested on the boats in the Mediterranean are normally the last link in the chain. Cooperation to crack down on the local and international criminal groups that control smuggling routes will be a major focus of the intensified cooperation set out above.

EU Agencies can also assist Member States' authorities in intensifying their action against criminal networks of smugglers. Agencies help identify smugglers, investigate them, prosecute them and freeze their assets. Action will build on immediate efforts to identify, capture and destroy vessels before they are used by criminal networks (see above). Proactive financial investigations, aiming at seizures and recovery of criminal assets, and actions against money laundering connected to migrant smuggling will be supported through enhanced cooperation with Financial Intelligence Units on financial flows and new cooperation with financial institutions, such as banks, international money transfer services, and credit card issuers. This will also draw on the improved information-sharing set out in the European Agenda on Security.

In order to strengthen the instruments available to prosecutors to address smuggling networks, the Commission will improve the existing EU legal framework to tackle migrant smuggling and those who profit from it.[10] In order to take specific action against traffickers' networks and provide assistance to victims of trafficking, the Commission will also complete the initiatives foreseen in the current strategy against Trafficking in Human Beings and look at how work can be further improved in 2016. Another potential source of exploitation comes from employers inside the EU: the Commission will set out further measures in areas such as workplace inspections to better apply the Employers Sanctions Directive[11], which prohibits the employment of third-country nationals who have no right to stay in the EU. It will also priotise infringement procedures relating to this Directive.

Return

One of the incentives for irregular migrants is the knowledge that the EU's return system – to return irregular migrants or those whose asylum applications are refused – works imperfectly. Smuggling networks often play on the fact that relatively few return decisions are enforced – only 39.2% of return decisions issued in 2013 were effectively enforced.

To increase the enforcement rate, we first need to ensure that third countries fulfil their international obligation to take back their own nationals residing irregularly in Europe.[12] The EU should be ready to use all leverage and incentives at its disposal.  The recently agreed Pilot Project on Return will offer an important practical demonstration of the way forward.[13] The EU will help third countries to meet their obligations by offering support such as capacity building for the management of returns, information and awareness campaigns, and support for reintegration measures. The Commission will also revise its approach to readmission agreements,[14] prioritising the main countries of origin of irregular migrants.

In parallel, Member States have to apply the Return Directive. The Commission will give priority to monitoring implementation of the Directive, with a more swift return system going hand-in-hand with the respect of the procedures and standards that allow Europe to ensure a humane and dignified treatment of returnees and a proportionate use of coercive measures, in line with fundamental rights and the principle of non-refoulement[15]. New rules on the return of irregular migrants are now being put in place in the framework of the Schengen Evaluation Mechanism, and a ‘Return Handbook’ will support Member States with common guidelines, best practice and recommendations.

While the EU has common rules on return, it lacks effective operational cooperation. Frontex is currently offering considerable support to Member States, but its mandate must be reinforced to increase its capacity to provide comprehensive operational assistance. Currently, Frontex can only coordinate return missions but not initiate its own. On the basis of the ongoing evaluation to be concluded this year, the Commission will propose to amend the Frontex legal basis to strengthen its role on return.

 

Key Actions

·         Making migration a core issue for EU delegations. ·         An action plan on smuggling in May 2015. ·         Stronger action so that third countries fulfil their obligations to readmit their nationals. ·         Adoption of a return handbook and monitoring of the implementation of the Return Directive. ·         Reinforcement and amendment of the Frontex legal basis to strengthen its role on return.

 

II.2    Border management – saving lives and securing external borders

The measures described above to address the situation in the Mediterranean today have been developed as emergency measures in response to a specific crisis. It would be a illusion to believe that this is a short-term need which will not return. The reinforcement of Frontex and the setting up of new forms of cooperation with Member States should be seen as a level of support and solidarity which is here to stay. The rules of engagement agreed for Triton should be seen as the model for future action. Every crisis will be different, but the EU needs to heed the lesson and be prepared to act in anticipation of a crisis, not just in reaction.

Identifying risk trends is increasingly necessary for effective operational preparedness. The roll-out of Eurosur^[16] has provided a good model on which to build and should be used to the full by all civilian and military authorities with a responsibility for maritime border surveillance. The relevant agencies should develop an effective situational picture to feed into policy-making and response preparation at national and European levels. [17]. 

The EU has an established policy to help Member States build up sound and consistent external borders. The Internal Security Fund already provides over €2.7 billion to Member States for the period from 2014-2020. But while rules on border control are in place, border management today varies, based on a patchwork of sectorial documents and instruments. In 2016, the Commission will consolidate this into a Union standard for border managementto cover all aspects of the Union's external border management.

Managing our borders more efficiently also implies making better use of the opportunities offered by IT systems and technologies. The EU today has three large-scale IT systems, dealing with the administration of asylum (Eurodac), visa applications (the Visa Information System), and the sharing of information about persons or objects for which an alert has been created by the competent authorities (Schengen Information System). The full use of these systems can bring benefits to border management, as well as to enhance Europe's capacity to reduce irregular migration and return irregular migrants. A new phase would come with the "Smart Borders" initiative to increase the efficiency of border crossings, facilitating crossings for the large majority of 'bona fide' third country travellers, whilst at the same time strengthening the fight against irregular migration by creating a record of all cross-border movements by third country nationals, fully respecting proportionality. Following initial discussions on the first proposal and to take into account concerns raised by the co-legislators, the Commission intends to present a revised proposal on Smart Borders by the beginning of 2016.

The development of high standards inside the EU will also make it easier for Europe to support third countries developing their own solutions to better manage their borders. Initiatives in key African and neighbourhood countries could be supported by Frontex as well as by EU funding and related initiatives in the context of EU neighbourhood and development policies. The goal should be to encourage more secure borders, but also to strengthen the capacity of countries in North Africa to intervene and save lives of migrants in distress.

 

Key Actions

·         Strengthening Frontex's role and capacity ·         Union Standard for border management. ·         A revised proposal on Smart Borders. ·         Strengthening the capacity of third countries to manage their borders.

 

II.3.   Europe's duty to protect: a strong common asylum policy

The EU needs a clear system for reception of asylum-seekers inside the EU. In 2014, a record 600,000 people applied for asylum in the EU. T All asylum applications must be processed and protection granted to those who qualify. One of the weaknesses exposed in the current policy has been the lack of mutual trust between Member States, notably as a result of the continued fragmentation of the asylum system. This has a direct impact on asylum seekers who seek to "asylum shop", but also on EU public opinion: it encourages a sense that the current system is fundamentally unfair. But the EU has common rules which should already provide the basis for mutual confidence, and a further development of these rules will allow for a fresh start.

A coherent implementation of the Common European Asylum System

The priority is to ensure a full and coherent implementation of the Common European Asylum System. This will be supported by a new systematic monitoring process, to look into the implementation and application of the asylum rules and foster mutual trust. In addition, working with the Member States and European Asylum Support Office (EASO), the Commission will give further guidance to improve standards on reception conditions and asylum procedures to provide Member States with well-defined and simple quality indicators, and reinforcing protection of the fundamental rights of asylum-seekers, paying particular attention to the needs of vulnerable groups, such as children.[18] The Commission will also prioritise transposition and implementation in practice of the recently adopted legislation on asylum rules when considering infringement procedures.

EASO will at the same time step up practical cooperation, developing a role as the clearing house of national Country of Origin Information – the factual information on which asylum decisions are based. This would encourage more uniform decisions. Other key measures are training[19] and a new dedicated network of reception authorities, which could lay the foundation for pooling reception places in times of emergency.

Strengthening the Common European Asylum System also means a more effective approach to abuses. Too many requests are unfounded: in 2014, 55% of the asylum requests resulted in a negative decision and for some nationalities, rejection rates approached 100%, hampering the capacity of Member States to provide swift protection to those in need. The legislation includes specific provisions to fight against abuses, for example by allowing swift processing of unfounded asylum applications. To reinforce this, the Commission will work with EASO and Member States to develop guidelines to maximise such possibilities.

Another problem arises with asylum applications from third country nationals who do not require a visa to come to the EU. These cases can be dealt with in part through the post-visa liberalisation monitoring mechanisms,[20] to reinforce this, the Commission will also examine whether the Safe Country of Origin provisions of the Asylum Procedure Directive should be strengthened, to support the swift processing of asylum applicants from countries designated as safe.

Dublin system - greater responsibility sharing across Member States

Though the recent legal improvements date only from 2014, the mechanism for allocating responsibilities to examine asylum applications (the "Dublin system"[21]) is not working as it should. In 2014, five Member States dealt with 72% of all asylum applications EU-wide. The EU can provide further assistance, but the rules need to be applied in full.

Member States are responsible for applying the Dublin system. In particular, they should allocate the resources needed in order to increase the number of transfers and cut delays, consistently apply the clauses related to family reunification, and make more regular use of the discretionary clauses, allowing them to examine an asylum application and relieve the pressure on the frontline Member States. At Union level, EASO will support Member States by establishing a dedicated network of national Dublin Units.

Member States must also implement the rules on taking migrants' fingerprints at the borders. Member States under particular pressure will benefit from the Hotspot system for providing operational support on the ground (see above). The Commission will also provide, by the end of May, guidance to facilitate systematic fingerprinting, in full respect of fundamental rights, backed up by practical cooperation and exchange of best practices. The Commission will also explore how more biometric identifiers can be used through the Eurodac system (such as using facial recognition techniques through digital photos).

When the Dublin system was designed, Europe was at a different stage of cooperation in the field of asylum. The inflows it was facing were of a different nature and scale. When the Commission undertakes its evaluation of the Dublin system in 2016, it will also be able to draw on the experience from the relocation and resettlement mechanisms. This will help to determine whether a revision of the legal parameters of Dublin will be needed to achieve a fairer distribution of asylum seekers in Europe.

 

Key Actions

·         Establishing a new monitoring and evaluation system for the Common European Asylum System and guidance to improve standards on reception conditions and asylum procedures. ·         Guidelines to fight against abuses of the asylum system. ·         Measures to promote systematic identification and fingerprinting. ·         More biometric identifiers passed through Eurodac. ·         Evaluation of the Dublin Regulation in 2016.

 

II.4    A new policy on legal migration

The EU faces a series of long-term economic challenges. Its population is ageing, but its economy is increasingly dependent on highly-skilled jobs. Changes in the skills needed in the EU between 2012 and 2025 is expected to show a sharp increase in the share of jobs employing higher-educated labour (by 23%).[22] So Europe is competing with other economies to attract workers with the skills it needs: shortages have already been seen in key sectors such as science, technology and engineering. Europe needs to build up its own skills base and equip people for inclusion in today's labour market. The Commission will present a new Labour Mobility Package in 2015, but even with a determined effort over the medium and long term we are unlikely to be able to fully match the needs: without migration, the EU's working age population will decline by 17.5 million in the next decade. Migration will increasingly be an important way to provide the EU economy with the talent it will need for sustainable growth.

The case for legal migration will always be difficult at a time of high unemployment and social change. That is why it is important to have in place a clear and rigorous common system, which reflects the EU interest, including by maintaining Europe as an attractive destination for migrants. .[23]

 

Well managed regular migration and visa policy

Decisions on the volume of admissions of third country nationals coming to seek work will remain the exclusive competence of Member States. But there is a specific role for the EU. Over the next seven years, European programmes such as Horizon 2020 and Erasmus+ will attract talented individuals to the EU. The Directive on Students and Researchers, now under negotiation by the co-legislators, aims to give these groups new mobility and job-seeking opportunities. The swift adoption of the legislation would allow these strategically important groups to see the EU as a welcoming environment for their work.

The next step should be an attractive EU-wide scheme for highly qualified third-country nationals. The Blue Card Directive already provides such a scheme, but in its first two years, only 16,000 Blue Cards were issued and 13,000 were issued by a single Member State. By the end of May, the Commission will launch a public consultation on the Blue Card Directive. A review of the Directive will look at how to make it more effective in attracting talent to Europe. The review could include looking at issues of scope such as covering entrepreneurs who are willing to invest in Europe, or improving the possibilities for intra EU mobility for Blue Card holders.

Another sector with important economic impact is services. The services sector includes well-trained, highly-skilled foreign professionals who need to travel to the EU for short periods in order to provide services to businesses or governments. The Commission will assess possible ways to provide legal certainty to these categories of people, also in order to strengthen the EU’s position to demand reciprocities when negotiating Free Trade Agreements (FTAs).

Member States' role in these decisions calls for a more direct and open dialogue to build common thinking and policy approaches and exchange best practice at European level. The Commission will support Member States in promoting a permanent dialogue and peer evaluation at European level on issues such as labour market gaps, regularisation and integration – issues where decisions by one Member State have an impact on others. The Commission will also establish a platform of dialogue to  include input from business, the trade unions, and other social partners, to maximise the benefits of migration for the European economy and the migrants themselves.

The EU needs the tools to identify those economic sectors and occupations that face, or will face, recruitment difficulties or skill gaps. Existing tools already provide some information, but a more complete picture is needed.[24] Existing web portals, such as the EU Migration portal and Europe’s Job Mobility Portal (EURES) can also play an important role in facilitating job matching for third country nationals already in the EU. In matching migrants' skills, a particular problem is the lack of recognition of qualifications acquired by migrants in their home country. The EU can help to improve understanding of qualifications gained outside the EU.[25]

The efforts to develop our new legal migration policy mirror the modernisation of our visa policy.[26] In 2014, the Commission tabled a revision of the Visa Code and proposed the establishment of a new type of visa: the Touring Visa.[27] The adoption of these proposals will provide the EU with more flexible visa policy tools, aiming to maximise the positive economic impact of attracting more tourists, and visitors on personal or professional grounds while minimising the risks of irregular migration and security. The Commission will also conclude by the end of 2015 its current review of which nationalities require visas and may propose to lift visa requirements for some nationalities, on a reciprocal basis, or to re-impose visa requirements for others. This will take into account the ongoing political dialogues with key countries on migration and mobility matters.    

Effective integration

Our migration policy will succeed if underpinned by effective integration policies. Although the competence lies primarily with Member States, the European Union can support actions by national governments, local authorities and civil society engaged in the complex and long term process of fostering integration and mutual trust.

Funding is provided by the Asylum Migration and Integration Fund (AMIF). But the European Social Fund (ESF) can also be of particular importance.[28] For the new programming period (2014-20), at least 20% of ESF resources will contribute to social inclusion, which includes measures for the integration of migrants with a particular focus on those seeking asylum and refugees.[29] The funds can support targeted initiatives to improve language and professional skills, promote access to the labour market, foster inter-cultural exchanges and promote awareness campaigns targeting both host communities and migrants. 

Maximising the development benefits for countries of origin

The EU's legal migration policy should also support the development of countries of origin. The United Nations will shortly adopt the Sustainable Development Goals (SDGs), and migration-related targets should be included, alongside targets in areas such as promoting decent work, youth employment, wage and social protection policies which can help countries of origin to create better economic opportunities at home. This would complement the work of the EU's Mobility Partnerships[30] and our efforts to mainstream migration issues into key development sectors.

The Commission will also make available at least €30 million to support partners with capacity building on effective management of labour migration, focusing on empowering migrant workers and tackling exploitation. To mirror the success of Europe in establishing a single market underpinned by labour mobility, the EU has also launched a €24 million initiative to support free movement in the Economic Community of West African States. Regional labour mobility schemes encouraging South-South mobility can bring an important contribution to local development. The Commission will also promote ethical recruitment in sectors suffering from a lack of qualified workers in countries of origin by supporting international initiatives in this field.

One way in which the EU can help to ensure that countries of origin benefit from migration is through facilitating cheaper, faster and safer remittance transfers. Adoption of the "EU Payment Services Directive II" would help to strengthen the regulatory environment for remittances, and at least €15 million will be made available through the Development Cooperation Instrument to support flagship initiatives in developing countries.

 

Key Actions

·         Modernisation and overhaul of the Blue Card scheme. ·         A platform for dialogue with social partners on economic migration. ·         Stronger action to link migration and development policy. ·         Re-prioritising funding for integration policies ·         Cheaper, faster and safer remittance transfers.

 

IV.  Moving Beyond

This Agenda primarily focuses on offering solutions that will allow Europe to move forward in these areas in the short and medium term. But if we are to address these issues in an effective and sustainable manner in the longer term, European cooperation in the area of migration needs to go further.

The initiatives contained in the Agenda will be critical in determining the future. The Commission will launch parallel reflections on a number of areas:

1.      The completion of the Common European Asylum System: The EU Treaty looks forward to a uniform asylum status valid throughout the Union. The Commission will launch a broad debate on the next steps in the development of the Common European Asylum System, including issues like a common Asylum Code and the mutual recognition of asylum decisions.[31] A longer term reflection towards establishing a single asylum decision process will also be part of the debate, aiming to guarantee equal treatment of asylum seekers throughout Europe.

 

2.      A shared management of the European border: The scaling up of action in the Mediterranean exposes the reality of the management of external borders increasingly being a shared responsibility. As well as a European System of Border Guards, [32] this would cover a new approach to coastguard functions in the EU, looking at initiatives such as asset sharing, joint exercises and dual use of resources as well as a the possibility of moving towards a European Coastguard.

 

3.      A new model of legal migration: The Treaty reserves the final decision on the admission of economic migrants for Member States. However, the EU needs to look at how to marry this limitation with the collective needs of the EU economy. In particular, the Commission will look at the possibility of developing, with the Member States, an "expression of interest system". This would use verifiable criteria to automatically make an initial selection of potential migrants, with employers invited to identify priority applicants from the pool of candidates, and migration taking place after the migrant is offered a job. This would allow for the creation of an "EU-wide pool" of qualified migrants, accessible to both employers and Member States' authorities – but with the actual selection and the admission procedure remaining national, based on Member States' actual labour market needs.

 

 

Annex

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[1] Ref. This part of The European Agenda on Migration incorporates and further develops the initiatives included in the framework of the Roadmap to follow up to the Statement of the European Council of 23 April.

[2] Ref

[3] This support is in addition to the substantial assistance available to these Member States from Home Affairs funds of which Italy is the major beneficiary in absolute terms and Malta in per capita terms.

[4] The European Maritime Security Agency, the European Fisheries Control Agency and Eurojust could also contribute to this work.

[5] Ref the source of the UNHCR 20,000 target

[6] To this end Member States can use funds available under the Asylum Migration and Integration Fund. Countries particularly affected by an influx of migrants and asylum seekers may also request assistance as appropriate from the EU civil protection mechanism.

[7] Established opt-outs under the Treaty would continue to apply.

[8] Council Regulation (EC) No 377/2004 of 19 February 2004. The Immigration Liaison Officers are representatives of the Member States who are posted in a non-Member State in order to facilitate the measures taken by the EU to combat irregular  immigration.

[9] These efforts will also be pursued under the European Agenda for Security and the Maritime Security Strategy. Migrants smuggling and trafficking are two diverse yet interlinked criminal activities perpetrated by criminal networks. The difference between the two is that in the former, migrants willingly engage in the irregular migration process by paying for the services of a smuggler in order to cross an international border, while in the latter they are the victims, coerced into severe exploitation which may or may not be linked to the crossing of a border. In reality, the two phenomena are not easy to disentangle as persons who start their journeys in a voluntary manner are also vulnerable to networks of labour or sexual exploitation.

[10] In 2002, the EU adopted rules to crack down on migrant smuggling: Directive 2002/90/EC establishing a common definition of the offense of facilitation of unauthorised entry, transit and residence, and Framework Decision 2002/946/JHA.

[11] Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals , OJ L 168, 30.6.2009, p. 24–32

[12] A specific obligation exists in the Cotonou Agreement with the ACP countries. In accordance with Article 13 of the Cotonou Agreement, each Member State of the European Union shall accept the return of and readmission of any of its nationals who are illegally present on the territory of an ACP State, at that state’s request, without further formalities; and each of the ACP States shall accept the return of and readmission of any of its nationals who are illegally present on the territory of a Member State of the European Union, at that Member State’s request and without further formalities.

[13] Council conclusions on EU Return Policy adopted at the Justice and Home Affairs Council meeting of 5 and 6 June 2014

[14] A readmission agreement facilitates the return of third-country nationals. Contracting parties will readmit to their territory without any formality persons with the nationality of that country who is residing without authorisation in the other country or who have crossed its frontier illegally.

[15] Non-refoulement is a principle of international law by which no expulsion measure will be carried out as long as no decision has been taken on the asylum application.

[16] Regulation 1052/2013 of 22 October 2013 establishing the European Border Surveillance System (EUROSUR): an information-exchange system designed to improve management of the EU external borders. Eurosur enables near real-time sharing of border-related data between members of the network, consisting of Schengen countries and Frontex.

[17] Coordinated by Frontex with input from EASO, Europol, the EU Satellite Centre and the European Maritime Safety Agency.

[18] In order to look at the specific vulnerabilities of children, not only those having a migrant's background, the Commission will develop a comprehensive strategy to follow up on the Action Plan on Unaccompanied Minors (2011-2014)

[19] EASO Training Curriculum, a common vocational training system designed for asylum officials and other target groups such as managers and legal officers throughout the EU.

[20] This allows the EU to take preventive action in partnership with the countries of origin, developing targeted information campaigns and reinforcing cooperation in border management and the fight against smugglers.

[21] Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly.

[22] Descy, Pascaline (2014), “Projected labour market imbalances in Europe: Policy challenges in meeting the Europe 2020 employment targets”, in OECD/European Union, Matching Economic Migration with Labour Market Needs, OECD Publishing. http://dx.doi.org/10.1787/9789264216501-12-en

 

[23] The Commission will also undertake an evaluation and assessment (fitness check) of the existing acquis on legal migration with a view to identifying gaps and inconsistencies and consider possible ways of simplifying and streamlining the current EU framework in order to contribute to a better management of legal migration flows.

 

[24] Such as the Skills Panorama and the Skills Alliances

[25] For example through the European Qualification Framework and in the context of the upcoming revision of the EUROPASS system.

[26] The common visa policy sets out the rules for the issuing (Schengen) short stay visas to third country nationals travelling for the purpose of e.g. tourism, business, private visits family/friends, cultural and sport events. In 2014, the Schengen States issued were approximately 15.8 million which represents an increase of approx. 60% compared to 2009.

[27] It is a new type of visa both for visa-exempt and visa requiring third-country nationals with a legitimate interest in travelling around the Schengen area for more than 90 days in any 180-day period.

[28] The implementation of these measures will be assessed by the end of 2015to see  whether Member States have met their objectives and whether any reprogramming of ESF resources is required..

[29] Member States can use these and other funds to support targeted initiatives to improve language and professional skills, promote access to the labour market, enhance inclusive education and youth participation, foster inter cultural understanding, and addressing discrimination, racism and xenophobia.

[30] The Commission Communication: "The Global Approach to Migration and Mobility" (COM/2011/743 final). These are the most elaborated bilateral cooperation frameworks in the field of migration. They offer a political framework for comprehensive, enhanced and tailor-made dialogue and cooperation with partner countries, including a set of targets and commitments as well as a package of specific support measures offered by the EU and interested Member States. They include the negotiation of visa facilitation and readmission agreements.

[31] Mutual recognition of positive asylum decisions means the recognition by a Member State of the positive asylum decisions taken by another Member State.

[32] Study on the feasibility of the creation of a European System of. Border Guards (http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf) +  ongoing study on the future of frontex