EU cooperation on migration with third countries: Time to address the genealogy of informal agreements in EU migration law

 

Dr Céline Hocquet, Teaching Fellow, Birmingham Law School, University of Birmingham

Photo credit: Issam Barhoumi, via Wikimedia Commons 

As the EU makes yet another proposal to cooperate with a third country on containing migrants outside its territory, it is urgent to engage with a critical analysis of the EU externalisation policy and the use of informal cooperation informed by the historical, legal and political context underpinning the EU external migration and asylum policy.

From the EU-Turkey to the EU-Tunisia deal?

On 11th June, the EU and Tunisia issued a joint statement agreeing to work together on a comprehensive partnership package. This partnership would cover several cooperation areas, including economy, energy, and migration. More specifically, the EU and Tunisia declared ‘the fight against irregular migration’ and ‘the prevention of loss of life at sea’ as their ‘common priority’. As such, it addresses migrant smuggling and human trafficking and bolster border controls and migrants’ registration and return. In exchange for Tunisia’s cooperation, the EU offers 100 million euros for border management, search and rescue, anti-smuggling and return operations in addition to a 1 billion euros investment plan for Tunisian economic development, including projects in the digital and energy sectors.

To those familiar with EU migration law and policy, this news will, no doubt, sound familiar.

Back in March 2016, the European Council published a press release following a meeting with representatives from the Turkish government. The EU-Turkey Statement – widely known as the EU-Turkey deal – traded the containment and return to Turkey of all irregular migrants arriving in Greece in exchange for 6 billion euros of EU funding.

At the time, arrivals of migrants to Europe crossing the Mediterranean Sea were characterised by the EU as a ‘crisis’. Emphasis was put on the exceptional nature of migration flows, the extraordinary numbers of migrants reaching European shores and the severe loss of lives during sea crossings. In this way, the situation faced by the EU and its member states was presented as critical and unprecedented. Its characterisation as a ‘crisis’, highly questioned by researchers, highlighted potential threats to the stability and security of the EU and/or its asylum system. Swift and exceptional measures were, therefore, necessary to put an end to the ‘crisis’ situation and its disruption. Such measures focused on further controlling irregular migration and EU external borders notably by externalising controls to third countries and third actors.

The EU-Turkey Statement was rapidly considered a blueprint for future EU migration and asylum policy developments by swiftly reducing migrant arrivals from Turkey to Greece. Despite criticisms raised against the precedent set by its informal nature and the threats caused to migrants and asylum seekers’ rights (see for instance on this blog here and here), similar non-binding and opaque partnerships, such as the 2017 Italy-Libya memorandum of understanding or the 2016 Afghanistan-EU Joint Way Forward, were signed between the EU or its member states and third countries to facilitate the return and/or containment of unwanted migrants.

Investigating the lineage of EU informal cooperation on migration

In my PhD thesis, I focus on this development. Namely, the EU’s increasing use of informal cooperation arrangements with third countries to control migration. More specifically, my research focused on investigating the implications of characterising the arrivals of migrants to Europe as a 'crisis' for the EU migration and asylum law system. Rather than focusing on informal cooperation developed as a result of the so-called ‘crisis’, I argue for the need to contextualise these developments within the EU migration and asylum law system as a whole. Only by doing so are we able to step away from crisis-driven considerations of emergency and security and understand the genealogy of the EU’s use of informal cooperation to externalise migration and border controls.

Using an iterative approach, I looked at the emergence and early development of the EU migration and asylum law system, especially some of its key measures. My analysis shows that informal cooperation such as the EU-Turkey Statement, the Afghanistan-EU Joint Way Forward, or the Italy-Libya Memorandum of Understanding, is far from being the result of unprecedented circumstances specific to 2015-2016 requiring swift and exceptional measures. Instead, they fit within the genealogy of the EU external migration and asylum policy. In my analysis, I identified a number of long-lasting tendencies that underpin the EU migration and asylum law system throughout its evolution. One of these tendencies is the use of informal and diversified cooperation frameworks and measures circumventing regular procedures and fundamental rights guarantees.

The legacy of the intergovernmental era

The emergence of a common approach to asylum and migration law at the then-EEC level shows the significant role of informal cooperation between member states. Indeed, well before the 2015 crisis member states developed cooperation informally among themselves using intergovernmental cooperation. A particular example is the cooperation developed within the Trevi Group. An ad hoc group of interior ministers initiated by the 1975 European Council in Rome, the Trevi group initially focused on member states’ cooperation regarding counter-terrorism before its scope expanded to asylum and immigration in the 1980s. This informal cooperation led to the adoption of several soft law measures in the field of immigration and asylum with long-lasting impacts on the common migration and asylum law system. The Dublin Convention and acts related to its implementations were, for instance, originally agreed upon as part of this ad hoc group before being incorporated into the acquis communautaire and formalised by Maastricht. Still, this shows how fundamental informal and opaque cooperation has been in shaping the common migration and asylum policy. The use of informal cooperation circumventing existing frameworks is not uncommon in the field of EU migration and asylum law. Informal cooperation agreements with third countries are therefore not the result of exceptional circumstances in 2015-2016. Rather, they fit within the legacy of the common migration and asylum policy and of how cooperation in these fields emerged in the first place.

Tampere and the comprehensive approach to migration

Although the EU cooperation on migration with third countries initially focused on entering into formal EU readmission agreements, the use of informal and diversified tools is not recent. Back in 1999, the Tampere European Council called for a comprehensive approach to external migration policy. This meant diversifying external measures related to migration by using other tools of EU external action and by addressing ‘political, human rights and development issues’ in third countries as means to reduce immigration to the EU. Signed on 23 June 2000, the Cotonou Agreement is considered the first example of the diversification of EU externalised migration and border controls. This agreement was primarily focused on EU development cooperation with African, Caribbean and Pacific states. Yet it also included readmission clauses to facilitate the return of migrants irregularly staying in the EU. It corresponds to the widening of EU migration-related cooperation to other aspects of external action. The allocation of 6 billion euros funding in exchange for Turkey’s cooperation on migration containment is therefore not a practice unique to the crisis context at the time of the EU-Turkey deal.

The EU’s Global Approach to Migration and Mobility and political agreements

Following the adoption of the Global Approach to Migration and Mobility (GAMM) in 2011, the EU introduced a new tool to develop its cooperation with third countries on migration: mobility partnerships. These political agreements are non-binding and aim at providing ‘tailor-made’ partnerships addressing shared concerns between the EU and its partner. They provide significant flexibility in terms of how to conduct the cooperation and the areas covered and contain little guarantees for fundamental rights. Therefore, although informal and opaque cooperation with third countries circumventing human rights and ordinary procedures was presented as a shift in the EU external migration policy justified by the 2015 crisis, my findings suggest otherwise. The EU’s use of non-binding and flexible tools to develop cooperation on migration and border controls with third countries pre-dated the crisis. The adoption of such informal agreements from 2015 onwards, therefore, constitutes a continuation of pre-existing practices.

Conclusion

This brief overview shows the significance of genealogy when analysing developments in the field of EU migration and asylum law. Crisis-focused analyses of these developments only provide a limited understanding as they ignore the underpinnings and historical, political, and social contexts in which these arrangements operate. Contrastingly, contextualising informal cooperation with third countries (such as the EU-Turkey deal or the emerging negotiations between the EU and Tunisia) within the broader evolution of the EU migration and asylum policy enables us to distance ourselves from the crisis or exceptional circumstances used to justify such measures. In doing so, it reveals that far from being policy innovation driven by emergency and security considerations, informal arrangements and diversified tools to externalise EU migration and border controls are a long-lasting legacy of earlier developments in the EU migration and asylum policy.

 

The EU’s New Pact on Migration and Asylum: three key arguments

 

 

Lilian Tsourdi, Assistant Professor, University of Maastricht

 *Photo credit:  Délmagyarország/Schmidt Andrea

 

The New Pact on Migration and Asylum is the EU’s latest policy framework on asylum, migration, and border management policies, and the series of legislative proposals that accompany it. Its stated aim is to establish ‘seamless migration processes and stronger governance’. Negotiations on the Pact legislative instruments have been ongoing since September 2020.

 

The European Parliament (April 2023) and the Council of the European Union (June 2023) recently adopted negotiating positions on two key instruments: the Asylum Procedures Regulation (APR) that reforms rules on asylum determination and related rights, and the Asylum and Migration Management Regulation (AMMR) reforming the EU’s system on allocating responsibility for processing asylum claims and establishing a solidarity mechanism.

 

This commentary develops three key arguments: i) while not inherently negative, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights; ii) the Pact instruments pay greater attention to the policies’ administrative design and carry potential to enhance implementation; iii) the Pact instruments contain a vision of flexible solidarity that remains linked with pressure and misses the mark of fair sharing. 

 

 

Externalization as the red thread

 

Creating seamless migration processes is not inherently negative. This approach acknowledges the intricate links between different policies at the operational level, especially at border areas. The UNHCR had voiced the need for swift identification at the external borders, differentiation between categories of persons making up mixed flows, and referral to an appropriate procedure, as early as 2007 through its so-called Ten Point Plan.

 

Nonetheless, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights. First, the Pact instruments establish accelerated screening, asylum, and return procedures at the external borders with curtailed procedural guarantees. Combined with logistic constraints (e.g. facilities, access to counsel) they risk undermining migrants’ (procedural) rights. The instruments also blur the lines between deprivation of liberty and restrictions to the freedom of movement and could lead to the propagation of widespread de facto detention.

 

Next, the latest negotiating position of the Council on asylum procedures expands the use and scope of the safe third country concept. Where third counties have either not ratified the 1951 Refugee Convention or retain a geographical limitation to its scope (the latter is the case for Turkey for example) the APR introduces the notion of having access to effective protection instead as part of the third country safety assessment. The provisions contain minimal guarantees to ascertain what effective protection entails, which establish standards below those foreseen by the 1951 Refugee Convention.  

 

In parallel, migration management has been streamlined in the EU’s external relations affecting areas such as development and trade. One way the EU is establishing these linkages is through making access to funding for non-EU countries conditional to cooperation on migration management objectives. The ‘deal’ with Tunisia spearheaded by the EU, Italy, and the Netherlands is the most recent illustration.

 

A greater attention to the system’s governance

 

One of the main ills of the EU’s asylum policy is its lack of attention to the administrative dimension. The current administrative design allocates the vast majority of operationalisation obligations – including financial ones – to Member States with different levels of economic development and different conceptualisations of welfare.

 

The Pact instruments recognise, more adequately than previously, the policies’ implementation dimensions. The Council positions on the AMMR and the APR highlight the opportunities generated through EU funding and EU agencies to implement policy. Nonetheless, the Pact instruments fail to adequately regulate the implications of agency involvement in implementation, while the current design of the EU budget (Multi-Annual Framework 2021-2027) precludes the existence of truly structural forms of EU funding.

 

Next, the AMMR and APR provide a structured approach to define Member States’ relative capacities and to apportion responsibilities in some areas (e.g. implementing border procedures) on this basis. The triggering of solidarity measures is also linked with quantitative and qualitative indicators that, overall, seem to be well suited to provide a holistic picture and assess relative pressure.

 

Finally, the Council negotiating position on the AMMR foresees new permanent governance mechanisms, such as annual High Level EU Migration and Technical Level EU Migration fora that are meant to play pivotal roles in animating inter-state solidarity through pledges. Such permanent structures, mirroring UN level processes, seem more apt to establish effective and predictable inter-state cooperation compared to ad hoc bargaining and emergency-driven responses.   

  

An inadequate vision on solidarity

 

The AMMR largely keeps intact the basic premises of the current ‘Dublin system’, EU’s responsibility allocation system. In brief, Dublin allocates responsibility to the state primarily ‘responsible’ for the person’s presence in the EU. In practice, this should mean the state of first irregular entry to the EU territory is responsible. However, states have sought to evade their Dublin responsibility (by not registering asylum applications for example) and asylum seekers move clandestinely through the EU and evade Dublin procedures.

 

To counter this, the AMMR Council negotiating position aims for a more predictable operationalisation of inter-state solidarity through annual Member State pledges. Nonetheless, solidarity measures, gathered under the framework of a so-called Solidarity Pool, are still meant to be triggered in situations of pressure.

 

The Solidarity Pool will consist of i) relocations (i.e. organised intra-EU transfers) of asylum seekers or recently recognised beneficiaries of international protection or of migrants under a return obligation; ii) direct financial contributions provided by Member States aimed either at boosting Member State or third country capacities in the areas of asylum, migration, or border management; iii) alternative contributions such as capacity building, staff support, equipment etc. All these contributions are meant to be ‘considered of equal value’.

 

In breaking with the past, solidarity has a mandatory character in the sense that Member States are to annually contribute their fair share that will be calculated through a formula that takes to account their population size (50% weighting) and their total GDP (50% weighting). Nonetheless, to appease Member States that opposed relocation, the Pact instruments foresee that Member States retain full discretion in choosing between the types of solidarity measures they will contribute.

 

Overall, the Pact’s approach is likely to miss the mark on fair sharing. While creating permanent governance structures, the Pact continues to link the activation of solidarity with pressure. Thus, instead of establishing structural fair sharing, solidarity remains a palliative solution. Next, it is unlikely that capacity building activities in third states, or sharing of personnel and equipment, will be considered by the benefitting Member States as having equivalent impact on the ground as people sharing.

 

The Long and Winding Road Ahead

 

June 2023 saw one of the deadliest shipwrecks involving migrants seeking to reach the EU’s shores with more than 500 persons missing and presumed dead off the coast of Pylos in Greece. Unfortunately, such unnecessary loss of life is being normalized with IOM reporting over 27,500 missing migrants in the Mediterranean alone since 2014. Action to reform the EU’s migration policies is imperative.    

 

EU official cycles hailed the Council’s early June negotiating position as a breakthrough. The timing of the forthcoming European Parliament elections, scheduled for June 2024, generates additional impetus for the EU’s co-legislators to reach compromise positions in the next months. Nevertheless, political rifts remain intense with Poland and Hungary blocking a joint political statement of Heads of State on migration during the late June 2023 European Council meeting.

 

What promise do the Pact instruments carry? They pay greater attention to policy implementation, governance structures, and the operationalisation of solidarity. Nevertheless, by prioritizing externalization, and by seeking to appease a limited number of Member States that seem to oppose (inter-state solidarity in) migration, they are likely to undermine migrants’ fundamental rights, while missing the mark on fair-sharing. A reform that will fail to deliver results, risks enhancing polarization in migration matters.

 

Legislative developments in the EU echo the UK’s recently adopted Illegal Migration Act. They testify to Europe’s increasingly defensive policy stance in migration. It is to be hoped that future policy will eventually aim at mutually beneficial partnerships with third countries, migrant, and local populations that move beyond Eurocentric frames to meaningfully address the different components of migration processes and aim at co-development. 

 

 

EU Referendum Briefing 4: Immigration

Steve Peers

Introduction

What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.   

Secondly, the distinction is important because non-EU migration actually accounts for a greater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelled from the EU every year.  

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote. 

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument - but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court has confirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, the deal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.  

In those five cases, the Court decided that: 

a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere); 

b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);

c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);

d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and 

e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-binding opinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Barnard & Peers: chapter 13

Credits - Meme: Pawel Swidlicki; Graph: The Independent; Photo: home.bt.com

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.

.

 

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