Academic Group on [Im]migration - Tampere
Efficient, effective and encompassing approaches to a European Immigration and Asylum Policy
Final Draft [9 June 1999]
For further information, please contact:
Dr Joanne van Selm (Coordinator: AGIT)
University of Amsterdam, Oudezijds Achterburgwal 237
1012 DL Amsterdam
Table of Contents
Brief Introduction ii
Summary of Key Recommendations iv
Part I: Increased Numbers of Asylum Applications
1. The Importance of Existing Obligations 1
2. The Development of a Comprehensive Approach 3
Migration Chain 3
Long-term Strategies 4
Reception in the Region 5
Part II: Uneven Responsibilities
3. Solidarity in Protection in an Integrating Europe 7
European Asylum Agency 8
Competence of the European Court of Justice 9
Part III: European Protection in Crisis Situations
4. Conditional Protection: integrated management of mass influxes 11
Part IV: Taking the Illegality out of Immigration
5. Identifying Immigration as Illegal 14
6. European Union Primary Immigration Policy 15
Visa Regime 18
7. Removal: Cooperation between Countries of Origin and of Immigration 20
Part V: Facing up to Racism and Xenophobia
8. Long-Resident Third Country Nationals 21
9. Family Unity 24
Treaty Obligations 26
Professor Pieter Boeles, University of Leiden and University of Amsterdam (NL)
Professor Roel Fernhout, University of Nijmegen (NL)
Professor Guy S. Goodwin-Gill, University of Oxford (UK) and University of Amsterdam (NL)
Ms. Elspeth Guild, University of Nijmegen (NL)
Dr Joanne van Selm-Thorburn, University of Amsterdam (NL)
A Brief Introduction
What is AGIT?
AGIT is a group of academics working on and concerned about Immigration and Asylum policies in the European Union. AGIT consists of three layers:
1. a small core group with five members (the compilers of this document);
2. a group of 20 academics from the 15 EU Member States, other European States and the US (whose comments have been solicited);
3. a wide group of academics from around the world who support this initiative prior to the European Council Summit in Tampere in October 1999.
As an academic group, AGIT consists of independent experts who are aiming to offer reasoned policy suggestions for a humane and reasonable approach by the EU towards immigrants and asylum seekers. Much research on migration is carried out by academics funded by Member State and Community institutions. However, the benefit of that work is not always fully enjoyed by those policy-makers involved in EU level discussions on immigration and asylum policies. Too often these officials lack constructive input from the academic world focusing on their direct policy related needs. We seek to remedy this situation. Our approach, based on the totality of academic research, is founded on the knowledge that migration can be and often is a positive feature in the lives of individuals, societies and States, and that the EU Member States can best serve their own interests (collectively and separately), as well as those of the societies they represent and of individual migrants originating from outside the EU, if they recognise and support the positive aspects of migration.
What is this document?
The following text comprises five sections which together offer options and suggestions for an effective, efficient and encompassing approach to immigration and asylum policies. Each section addresses specific difficulties which we believe EU governments perceive themselves to be facing in 1999. Those issues are listed below. The document addresses the policy issues as they currently exist, but above all it offers suggested solutions. These are listed in the Key Recommendations which follow this introduction.
What is the aim?
The October 1999 European Council Meeting in Tampere comes at a moment when Immigration and Asylum policies are gaining importance in the wider European integration process. The aim of this document and of this initiative is to offer suggestions and advice from independent, academic thinkers on immigration and asylum. It is based on the assumption that the European Council, on this occasion, may wish to agree on a strategy to meet the challenges in the fields of immigration and asylum, making use of the new opportunities which the entry into force of the Treaty of Amsterdam offers. The Member States are responding to challenges which could be formulated in the following way:
a) the increasing number of asylum applications;
b) the uneven distribution of the asylum case load among the European Union Member States;
c) the lack of effective mechanisms to offer protection to persons in need of it during times of emergency crisis, such as the situation in Bosnia and Kosovo;
d) distinguishing between legal and illegal/irregular immigration; and
e) responding to the rise in racist and xenophobic tendencies throughout Europe.
In this document, these challenges are briefly analysed and in each case, possible solutions are recommended.
Summary of key recommendations
It is our firm belief that the European Union should develop a humane and reasonable approach to asylum and immigration policies, which by definition requires adherence to and respect for all existing international obligations. As such, the recommendations contained in this document are all grounded on those international agreements. An appendix outlining specific key elements of those obligations is included.
1. A comprehensive approach with regard to asylum and immigration policies must be made operational.
2. To meet the challenge of increasing numbers of asylum applicants in Europe the comprehensive approach should include measures which limit the need for forced migration, preventing its forced character wherever possible, and offer effective protection where the prevention of enforced migration has failed.
3. Admission policies should be adjusted to respond to realities. This means that new legal channels of immigration based on economic, social and other needs should be created, in line with the European Union Member States own positive approach to the freedom of movement for persons between them for economic purposes. The social needs include a response to the rights and expectations of citizens and lawful residents, and therefore reduce the occurrence of illegality, without being detrimental to the beneficial impacts of the immigration itself.
4. Illegal immigration needs to be tackled, not least by overcoming technical problems relating to removal, in particular, by strengthening bilateral, regional, and multilateral relations in the field of migration, on the basis of established international standards. However, if removal is impossible for technical reasons, then it must be recognised that the policy contemplating removal has serious flaws.
5. Policies on Reception in the Region could be developed on the basis of negotiated agreements between receiving or front-line States and the European Union, which:
a) acknowledge reception in the region as primary reception, with the full cover of universal protection including refugee status and resettlement opportunities within two years;
b) involve the supervision and/or management of reception facilities by UNHCR, subject to appropriate accountability mechanisms;
c) acknowledge that for European refugees, reception in the region involves reception in the entire European region, including EU Member States.
6. A reassessment of the Dublin Convention leading to a new approach in which claims will first be assessed by the country in which the applicant is present, before later being transferred to the State with responsibility for reception of that person the whole being subject to European judicial oversight or equivalent mechanisms to ensure accountability with international and European standards.
7. The establishment of a European Asylum Agency, as a longer-term supplement to point 6.
8. The Creation of a European Research and Documentation Centre for the monitoring of conditions in countries of origin, countries of transit or first refuge, and countries of potential emigration, according to the highest standards of transparency and accountability.
9. Early use by the Community institutions of their powers to decide on an asylum Directive according to art. 63 EC in order to enable the European Court of Justice to harmonise by preliminary rulings the interpretation of the definition of the term refugee as set out in the 1951 Convention.
10. The development of a policy of Conditional Protection, permitting the time to undertake capacity building for the management of mass influxes, followed by Time-Limited or Unlimited Protection for those displaced.
11. The basis for exchanges of Immigration and Asylum Service officers to assist in the management and rapid processing of claims in mass influx situations.
12. The Union should take the developments under GATS as its starting place on a European primary immigration policy as regards the movement internationally of persons in the pursuit of economic ends. The focus should be on the benefit of such movement, and the Community's existing commitment to its successful achievement and liberalisation.
13. Union migration policy must be coherent and aimed at promoting global economic development and interdependence. Mechanisms such as cooperation and association agreements should be used to abolish obstacles to commerce such as mandatory visa requirements on the movement of persons for commercial purposes.
14. Measures to combat racism and xenophobia should challenge the attitudes of some EU citizens rather than target immigrants or be used to justify restricting immigration. The EU should demonstrate to its own citizens that all physically present are entitled to personal security and that long-resident third country nationals belong here by taking a serious approach to the security of their residence status.
15. Family reunification and formation must be permitted, with very limited conditions attached, and certainly not denied for economic reasons.
Increased Numbers of Asylum Applications
1. The Importance of Existing International Obligations
1. According to data published by the Statistical Unit of UNHCR, after significant decreases from 1994 to 1996, the number of asylum applications lodged in the EU-Member States increased in 1997 and 1998, with a similar tendency developing in 1999. The number of applications lodged increased from 252.000 in 1997 to 299.000 in 1998, an increase of 19 percent. Instability in Europe, and the resultant re-emergence in forced migrations within Europe are critical to this change.
2. Compared to the world-wide refugee situation, these numbers are quite insignificant. Refugees from Europe tend to stay in this continent, close to their homes, unless resettlement to other continents (North America and Australia) is their only means to finding safety. However, only a very small proportion of the rest of the worlds refugees arrive in Europe (estimates vary between 1% and 5%). Nevertheless, the statistical increases mentioned above have caused some EU Member State governments to express concern. One reason for these concerns is the fact that developments are not similar in all EU Member States: whereas in Germany the number of asylum applications fell by 6%, in 1998 other Member States faced increases of 106% (Austria), 86% (Belgium) or between 30 and 40% (the UK, Sweden and the Netherlands). Taking into account the costs of asylum procedures and various reception facilities in these Member States, it cannot be denied that the concerns about statistical increases merit the development of a well-organised approach.
3. Concern is also expressed at the situations which give rise to forced migration, and particularly those on the European continent. However co-ordination in responses to these two concerns (statistical increases and European sources of forced migration) is, unfortunately, rarely manifest.
4. No Government can successfully the challenges posed by these numbers by seeking to avoid its international responsibility to offer protection to those in need of it.
5. It is widely assumed that States obligations to refugees and asylum seekers are more or less co-extensive with those accepted on ratification of the 1951 Convention/1967 Protocol relating to the Status of Refugees and, indeed, that States are moreover obliged to extend the full benefit of those treaties to all who, being within their territory or subject to their jurisdiction, qualify as refugees in the sense of Article 1A(2).
6. The consequence of this assumption, which can only be explained by a remarkable degree of ignorance, is another set of assumptions, including the proposition that Europes refugee problems will be more easily resolved if, or once, the 1951 Convention/1967 Protocol is taken out of the picture. For all its other juridical failings, this is like imagining that if you repeal the law against murder, there will be no more unlawful killings.
7. It is often forgotten that the 1951 Convention was drafted precisely to ensure a more secure legal status for refugees, particularly those who had been granted permission to reside in the territory of the contracting States. Most of the rights provided for by the Convention are consequently linked to one or other form of lawful residence. Certain key provisions do not depend on residence, however. These are, inter alia, the definition of a refugee provided in Article 1, as amended by the 1967 Protocol, the principle of non-refoulement in Article 33, and the protection accorded by Article 31 to refugees who, coming directly from a country in which their life or freedom were threatened, enter or are present illegally. No derogation is permitted from the first two provisions, in respect of which States parties may make no reservation.
8. Although embedded in treaty, the refugee definition and the principle of non-refoulement are also paralleled by rules of customary or general international law; that is, the concept of refugees as persons entitled to international protection exists outside the 1951 Convention/1967 Protocol, as does the rule prohibiting the return of refugees to where they may be persecuted. Indeed, both concept and rule are probably wider than those in the Convention and Protocol.
9. Denunciation of these two instruments would require a change in the new consolidated version of the Treaty Establishing the European Community, as Article 63, paragraph 1, explicitly requires that measures on asylum be developed "in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of Refugees, and other relevant treaties.". However, even if such a change were considered, this would not alter the wider situation: the general law would remain undisturbed. States might cease to owe convention obligations to other States party, but their obligations to the international community at large would continue and their performance would remain to be monitored by the Office of the United Nations High Commissioner for Refugees which possesses a general competence to provide international protection to refugees, irrespective of the country in which they find themselves and independently of such countrys ratification of any treaty protecting refugees.
10. Appended to this document readers will find a survey of other international treaty obligations which offer protection to persons in need of it or otherwise require the protection of human rights, such as Article 3 of the European Convention on Human Rights, Article 7 of the 1966 International Covenant on Civil and Political Rights, Article 3 of the 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and Article 22 of the 1989 Convention on the Rights of the Child.
11. So, for legal reasons alone, any attempt to reduce the scope of international obligations, when it comes to the protection of refugees is bound to fail. Any strategy with regard to the challenge of increasing numbers of asylum applications should therefore be based on the full recognition of existing international obligations.
2. The Development of a Comprehensive Approach
1. Given, as we have indicated above, that partial or full denunciation of existing international instruments is not a viable way forward, how should Member States then develop an efficient and effective strategy designed to meet the challenges posed by increasing numbers of asylum applications?
2. The first step lies, we suggest, in making operational a comprehensive approach with regard to asylum and immigration policies.
3. Such an approach has been advocated on various occasions by the European Commission and by individual Member States. In the Declaration of Edinburgh, adopted in 1992, the Council formally adopted this approach. However, its implementation has not proved to be easy, especially since this would require some organisational re-structuring within the Union as well as an adjustment of many of the policies at issue.
4. The main elements of the comprehensive approach are:
a) Consideration of all of the elements of the migration-chain and how they interact;
b) Emphasis on the need for long-term strategy planning in addition to necessary short-term measures.
5. As the European Commission clearly expressed in its 1994 Communication to the Council and the European Parliament on Asylum and Immigration, a comprehensive approach with regard to these issues must encompass the following elements: analysis of the factors underlying migration pressure; development of better data concerning actual and potential migratory movements; border controls; visa and admission policies; removal policies and integration policies.
6. The basic assumption behind this approach is that while, in principle, migration is positive for both the countries of origin and destination, and for the migrants themselves, this is not true for all forms of migration. The question of positive and negative effects surrounding forced migration is complex. Once a person has been forced out of the peace and security of life as it had been in the country of origin, the effect of protection away from that country, and thus of the end point of a migration, is positive. However, the forcing of the migration in the first instance is clearly negative, for all concerned: the situation in the country of origin permitting, persons in need of international protection would normally have preferred not to migrate. Insofar as the motives behind applications are not related to persecution or related factors, but are primarily based on economic considerations, it is also difficult to say whether migration would be positive or not: for the persons concerned, migration could indeed be positive, especially when they can obtain the right of legal residence. Governments of receiving countries may also underestimate the potential of these migrants, and their positive contributions to the national economy.
7. We advocate policies which seek to diminish the causes of forced migration but promote both the protection of those in fact forced to flee and the economic development of EU states through effective international trade, exchange of services and other forms of necessary and useful labour migration.
8. The comprehensive approach requires from governments that they look into the underlying factors: why do people take such huge risks in order to reach Europe often through the hands of traffickers? Are Member State policies in fact encouraging such crime by closing off legal channels of entry and yet creating an employment situation in which the work of immigrants is necessary and beneficial?
9. Similarly, when it comes to forced migration, the answer cannot be to close our borders, but in the context of a comprehensive approach it is logical to step up all efforts to solve the underlying situation giving rise to such forced migration.
10. In other words, a comprehensive approach requires flexibility when it comes to the discussion of admission policies: it requires the search for an optimal policy mix, which addresses root causes, but also opens the doors to those migratory movements which have positive aspects as described above. By reducing forced migratory pressures on the one hand, and by creating legal openings in the immigration system on the other, it should become possible to ease pressure on the control systems, both at the border and inside the country.
11. Removal policies are an important element of immigration control as they are the final test of the adequacy and effectiveness of the whole immigration and asylum system. The lack of effectiveness of removal policies shows that there is something wrong with our admission policies: when governments decide that it is not reasonable to force the immigrant to go back to his or her country of origin, this should have come out earlier in the process, and admission policies should have made it possible for the immigrant to remain in the receiving country on a firm legal basis. Removal must never be a death sentence: there must always be adequate and effective controls to assess claims to protection, ensuring that there can be no question of refoulement.
12. Finally, integration policies should be such as to make it possible for society at large to see the positive effects of migration: far too often, the general picture illustrates immigrants as only posing problems. Of course, all the successes of immigrants are then easily forgotten. It is a fact of life that the media especially tend to concentrate on problems, rather than on success stories. Thus, immigrants become the objects of racism, xenophobia and exclusion which, in their turn, prompt governments to be even more restrictive in their approach to immigration, whereas in doing so they only aggravate the problems.
13. To rethink asylum and migration policies on the basis of the interrelationship of all of these elements is a major exercise, but essential, if one takes the comprehensive approach seriously.
14. Long-term strategies are an essential component of any initiative on the migration policy chain of reactions described above. There is a tendency to give significant attention to migration and asylum when there is a "crisis", whether this be a Bosnia- or Kosovo-type situation, or a moment at which the perhaps gradual but consistent increase in the number of asylum applications is noticed. In those moments of relative panic, rapid policy changes are made which are purely reactions to the given situation, rather than clearly thought out strategies and forward-planning for future crises: ie short-term measures are taken, though they may be given the appearance of permanent strategies. When there is no apparent crisis, these policies are not debated. Such a haphazard approach has detrimental effects on the overall ability to control and manage migration. There are countless examples of this happening in Europe: by restricting asylum procedure and by closing the door to immigration, governments have tried to convince their citizens that migration is under control. Time and again, however, it has been apparent that underlying migration pressures have not been dealt with appropriately and it has always only been a matter of time before new "crises" emerged, again resulting in short-term crisis planning, which then in turn becomes the new status quo.
15. In the context of a long-term strategy, a careful analysis of migration pressures and actual and potential migratory movements is essential. In addition, the immigration needs of the EU-Member States should be examined. Owing to demographic developments, and in view of the decreasing unemployment rates throughout Europe, there is likely to be a need for labour-related immigration. Indeed much necessary labour migration already takes place, although some of it is labelled illegal. Similarly, sending countries may take a strong interest in migration towards Europe, either of a temporary or of a permanent nature. As will be shown in Part IV, such interests must also be taken into account.
Summarising, a strategy aimed at meeting the challenge of increasing numbers of asylum applicants in Europe should consist of the following measures as part of a comprehensive approach:
1. consistent monitoring of developments in areas of the world, from which forced migration is likely to occur;
2. limiting the need for forced migration, preventing its forced character wherever possible, and effectively protecting where the prevention of enforced migration has failed;
3. adjusting admission policies to create new legal channels for migration based on economic motives, to bring them in line with removal practices.
Reception in the Region
16. Against this background, possibilities for a more expansive approach to the Geneva Convention could be explored, guaranteeing the status of refugees, while being creative on the matter of the initial locus of protection. Without limiting the traditional responsibility of the international community for the protection of refugees world-wide, it seems possible to place greater emphasis on the initial reception of refugees in their region.
17. Under the following conditions, Europe might be able to justify sending asylum applicants to available and internationally agreed and monitored reception facilities in their region of origin.
a) Such reception facilities should be run or at least supervised by UNHCR and should maintain standards which are humane, according to objective and internationally determined criteria, based on respect for the dignity of refugees and above all guaranteeing security, human rights and survival in safety, with awareness of any particular potential social or cultural areas open to sensitivity.
b) As is often the case already, the industrialized world would have to contribute financially and technically to the establishment and maintenance of these facilities.
c) Reception facilities financed by the international community and overseen by UNHCR should be located in areas where they do not add a destabilizing factor to an on-going displacement inducing situation. In situations of conflict, they (the reception facilities) should never be located on the border with the country of origin of the refugees, and often not in a neighbouring state.
d) In order to satisfy the international communitys interest in protection, including the interests of donors, governments, and refugee advocacy and support organizations, oversight mechanisms should be put in place to ensure accountability and compliance with international standards in management and treatment of refugees and asylum seekers.
18. However, based on the principle of universal responsibility for refugees world-wide, this cannot be the end of the story: after a certain lapse of time, the regional primary-responsibility for reception would cease to exist. This reflects the above-mentioned universal responsibility, but it also reflects the fact that it is up to the international community at large to deal with the root causes of refugee movements. As these will by definition involve gross and consistent violations of basic human rights and fundamental freedoms, or violent conflicts, they are the responsibility of the international community.
19. When after a period of, for example, two years, the international community has not succeeded in addressing the root causes and the refugees have not returned to their country of origin, the international community will have to live with the consequences. This implies that the countries of first reception will have to be relieved of their responsibility and the first reception has to be supplemented by resettlement elsewhere in the world.
20. Such resettlement ought to be accompanied by a regular Convention or equivalent status, the period of conditional protection (as set out in Part III below) having already been fulfilled in the regional reception facilities.
21. This represents an integrated package: it takes account of all interests involved and could thus prove to be acceptable for all countries concerned, including countries which are likely to become responsible for primary reception.
22. Such a new form of implementation requires long and intense international negotiations concerning the establishment and financing of acceptable reception facilities. This should therefore constitute an important element of foreign policy.
3. Solidarity in Protection in an Integrating Europe
1. As the European Union integrates and achieves an area with no internal frontiers between Member States, the external frontiers of each of those same Members become the collective frontiers of all Member States. In an area with freedom of movement for all people, entry into one Member State means entry into all. Any difficulty or advantage which one Member State perceives in the field of immigration and asylum becomes a difficulty or advantage which can impact all Member States. Solidarity is therefore required in fairly distributing both the burdens and responsibilities which asylum policies entail, and in sharing collectively in the positive aspects of asylum-immigration and guaranteeing protection to those in need of it.
2. The criteria and deficiencies in the Dublin Convention are resulting in an unfair and failing system of attempted burden-sharing between EU Member States. In many cases a Member State in which an application is lodged cannot prove that an asylum-claimant has in fact transited another signatory State, or which State has been transited. Even where a Member States claim concerning the State responsible is accepted and an applicant could be transferred, this often does not happen.
3. Many expect that Eurodac will improve the functioning of the Convention. However, it will not. On the contrary, any Member State inputting an asylum seekers or illegal immigrants fingerprint information to the data exchange system will make itself responsible for that person. Member States will probably be rather reluctant to do this, so high expectations of useful cooperation are misplaced.
4. Although the wording of the Dublin Convention gives the impression of a neutral instrument, the actual outcome of its mechanism for the division of responsibility among the Member States for examining applications for asylum is rather selective. If it in fact worked, it would place the heaviest burden on the Eastern and Southern Member States. The coming into force of the Eurodac Convention and its Protocol, if they operate as intended, will reinforce this unbalanced division of responsibility.
5. The Convention results in a distribution which is determined either by the geographical position of the Member States, or by pure accident. One and a half years after its coming into force (and almost four years after the Schengen Implementation Agreement introduced a comparable mechanism) the deficiencies of the system are becoming more and more obvious:
a) if the present system worked properly, the responsibility for examining asylum applications would rest almost exclusively with the Member States at the eastern and southern borders of the European Union;
b) however, there is no proof of entry into the EU or transit through a Member State in the cases of a majority of asylum seekers;
c) therefore, requests to readmit or take back an applicant who has lodged an application in a different Member State are often refused;
d) if the claim by the Member State is accepted quite often after a considerable period of time - the actual transfer of the applicant from the Member State where the application was lodged to the Member State responsible takes several months, without any substantive decision about the application;
e) the system requires the forced transfer between the Member States of asylum applicants before any decision about the well-foundedness of their application is taken;
f) finally, many asylum seekers withdraw from the actual transfer to the Member State responsible and prefer illegal residence on the territory of the Member State in which they find themselves.
A new approach
6. While aware of the differing national points of view and the difficulty of arriving at a uniform European system, we believe that an effective solution to these problems could be found in a more realistic approach.
7. A one-chance-system as laid down in the Dublin Convention is still a reasonable option. But instead of lengthy and uncertain procedures for establishing responsibility, in our view the Member State where the application is made should be responsible for handling the asylum application, except in cases where the asylum seeker has already made an application in another Member State or has already obtained a visa or a residence permit from another Member State. Such an approach honours the spirit of the preamble of the Dublin Convention and is in line with the actual outcome of the Dublin Convention: in most instances the Member State where the first application is made is in the long run also the state responsible for the processing of the application owing to the impossibility of proving and establishing the route travelled by a majority of the asylum seekers. Such a system would be the simplest, fastest and the clearest with regard to the principle of free movement of persons. The present Dublin claiming system and the closely connected complicated and lengthy procedures would end, except in cases in which - with the help of Eurodac access to the asylum procedure of another Member State can be established easily or in which visa or residence permits are, or have been, granted by another Member State.
8. Not only a proper application of the present Dublin criteria, but also a system of examination of asylum requests in principle by the Member State of application may occasionally result in an unfair distribution of responsibility for asylum seekers. Therefore a full European dimension of asylum policies requires a system of financial compensation for Member States receiving relatively high numbers of asylum seekers. The disproportionate costs of the asylum procedures should be compensated by the European Union, or by a common fund set up by the Member States. The same financial compensation should apply to the disproportionate costs of measures to return rejected asylum seekers to their country of origin or to another country which they may lawfully enter.
9. Compared with the present, inadequate mechanisms of the Dublin Convention the advantages of this new approach are:
a) no delays in the substantive examination of asylum application caused by lengthy, complicated and uncertain procedures to determine the Member State responsible for the examination;
b) no transfer between the Member States of asylum seekers still waiting for an examination of their requests, but instead a transfer of resources only.
Uniform European asylum system
10. At a later stage a uniform European asylum system requires, in our view, the establishment of a European Asylum Agency for the strict harmonisation of national asylum policies. Such a European agency, operating within the legal framework established by, among others, the 1951 Convention/1967 Protocol and the European Convention on Human Rights, would be responsible for the harmonised application of the criteria and procedures, for the common assessment of the situation in countries of origin and for a uniform application of the principles of safe third country and safe country of origin. In the long run exclusive competence should not be excluded.
11. Tasks for a European Asylum Agency would be inter alia:
a) co-ordination of the establishment (in accordance with common reception standards) of initial reception facilities in the Member States (preferably at the external border of the Union, except where this adjoins an asylum seeker producing state);
b) supervision of the application of uniform determination procedures and uniform criteria for protection under the Geneva Convention or for (temporary) protection under European instruments;
c) co-ordination of the data exchange between the reception facilities in accordance with international standards for data protection;
d) deciding issues of responsibility according to a limited set of criteria (in principle the Member State of application is responsible for the applicant and his or her family members, unless an earlier request was made in another Member State or a visa or residence permit for another Member State has been issued);
e) co-ordination of the actual transfer to a reception centre in the responsible Member State, if necessary;
f) co-ordination of the return of rejected asylum seekers to their country of origin or to another country which they may lawfully enter;
g) co-ordination of financial compensation in cases of the disproportionate distribution of costs of reception, admission and removal of asylum seekers.
12. Secondary movements of asylum seekers on the territory of the Member States, which characterise the present system, would be discouraged in a system in which asylum requests would be uniformly examined in uniform reception facilities under EU co-ordination, and with UNHCR oversight.
13. In both approaches (the short-term simplified criteria for establishing responsibility and the longer-term establishment of an European Asylum Agency), physical responsibility sharing to redress a disproportionate burden of some Member States for the reception of refugees and displaced persons should be avoided. It is extremely difficult to resettle persons against their will. Moreover, obligatory resettlement of persons eligible for (temporary) protection contravenes the Treaty aim of establishing "progressively an area of freedom, security and justice" in which the free movement of persons is ensured.
14. As long as the European Asylum Agency does not have exclusive competence the decision on an asylum request is still a national decision under supervision of the national judiciary. But the Treaty of Amsterdam provides for a uniform interpretation by the European Court of Justice from the moment that European measures concerning minimum standards for refugee protection and temporary protection come into force.
Competence of the European Court of Justice
15. Therefore, in both approaches mentioned above, we strongly suggest that a Directive concerning the concept of the term refugee be concluded as soon as possible. Only with the coming into force of such a directive will the supervisory role of the Court of Justice be secured. In our opinion, the protection provided by the Refugee Convention, the European Convention on Human Rights and the UN Convention against Torture should be integrated. Furthermore we are of the opinion that a Directive on the term "refugee" cannot exist without definitions of 'clearly unfounded asylum requests', 'host third country' and 'safe country of origin' as well. Additionally there should be a parallel legislative development concerning the minimum standards of reception and rights for asylum seekers.
If it proves difficult to reach agreement on the wording of a minimum standards directive concerning the term "refugee" we suggest the transformation of the current joint position into Community law, subject to revision of those elements affecting minority practices incompatible with international law and protection objectives. It will subsequently be up to the Court of Justice to interpret the meaning of the Articles of the transformed joint position.
European research and documentation centre
17. Additionally a common assessment of countries of origin is considered an important instrument for harmonisation. In the Action Plan of the Council and Commission (December 1998) for the implementation of the Treaty of Amsterdam, assessment of countries of origin in order to formulate a country-specific integrated approach is anticipated. We endorse this idea but would like to add that a country-specific approach is a continuous process, which concerns not only the assessment of countries of origin, but also of safe countries of origin and receiving third countries. For this continuous process of information gathering and analysing we propose the creation of a joint and independent European Research and Documentation Centre.
18. The European Research and Documentation Centre would be given the task of providing country reports. Country reports and other information products should be factual and based on information given by Member States, UNHCR and relevant NGOs; they should be properly sourced and prepared on the basis of the highest standards of transparency, particularly in relation to information collection, corroboration and analysis. Once a report is finished it should be sent to the Council, the Commission and the European Parliament. By sending it to the European Parliament availability to the public would be guaranteed. Based on these reports the Commission should make proposals on refugee protection and conditional and time-limited protection for decision-making by the Council. The decisions of the Council would then be implemented by the European Asylum Agency.
European protection in crisis situations
4. Conditional Protection: Integrated Management of Mass Influxes
On the basis of existing international obligations, and the European standard set by Article 3 of ECHR, the EU should seek a common approach to situations of mass influx, which cause short- to medium-term overload of management and procedural structures within the refugee determination process.
1. Since the end of the Cold War Era, if assessed from the perspective of the number of displaced persons, Europe has been an unstable region. The number of asylum seekers from European states outside the EU has fluctuated dramatically over short periods of time. The number of localised ethnic and other violent conflicts has grown resulting in significant numbers of displaced persons. From 1991 onwards, the situation in former Yugoslavia has been the cause of displacement for many hundreds of thousands of persons in need of international protection.
2. As part of a comprehensive approach, EU Member States acting as the EU or in other (security) organisations, must constantly make the link in planning and overall vision, between security policies and (military) interventions, on the one hand, and approaches to protection of the displaced, on the other. Such linkage becomes even more important when the military action is defined by its perpetrators as humanitarian in nature.
3. One of the more recent additions to the spectrum of statuses Member States accord is that of 'temporary protection'. In response to the significant influxes of people from former-Yugoslavia from 1991 onwards, the Member States developed separate approaches to what is generally known as temporary protection. The core common feature of these approaches lies in the desire to deal quickly and effectively with arrivals in need of protection, while not over-burdening existing asylum procedures. In some Member States, temporary protection as developed for Bosnians was a new approach, in others, an extension of existing humanitarian statuses under a separate quota. In some of the former category of States temporary protection has remained as a separate approach for mass influx situations; in others it has been used as a more general category of lesser humanitarian protection than Convention status.
4. Member States and the European Commission have sought ways of compromise and harmonisation of these varied approaches. However, as many of them were ad hoc in nature, it would seem more advisable for the European Union to return to the drawing board and devise a new collective strategy. This should be based on the needs of the type of situations faced, with particular attention to the management perspective, and clearly be linked to questions of distribution of responsibility in protection and to security and foreign policies operational in the same displacement provoking situation.
A different model: 'Conditional' & 'Time-limited' protection
5. The essential reason for which Member States seek to grant temporary protection is a question of management. When a significant number of people arrive all at once, Member States see the need to give themselves and their immigration services a way out of the handling of claims on an individual basis within a short period of time.
6. The EU could therefore establish a form of 'Conditional Protection' for a period of six months to one year, during which both the State and the protected accept that they have certain duties. The State has the duty to solve its management problem (and attempt to resolve the crisis causing the protection need). The 'Conditionally protected' have the duty, during those initial six to twelve months, to remain in the State in which they seek protection and to be prepared to return to their country of origin should the situation develop in such a way that return in safety and dignity becomes a real possibility before the end of that initial 'Conditional protection'.
7. While six to twelve months may seem a short period to resolve the type of management difficulties EU Member States could face in a time of emergency, measures could be taken in the form of contingency planning, which could be usefully implemented whenever necessary.
8. Member States could invest in a reserve service of immigration staff. Immigration service personnel often move on within a short period of time. However, many could realistically be entered on a reserve list, to be called on when needed to process applications arising from emergency service in the interest of the State. Such reserve staff would need periodic refresher courses and training, whenever new rules are brought in. The costs for such additional training could be borne by a European Union common fund as set out in Part II above.
9. A further useful step in an integrating Europe would be the possibility for shifting or borrowing trained staff from other EU immigration services during times of mass influx which affect particular Member States more than others. The training of immigration service staff available for transfer should include language courses in other EU languages. While asylum seekers and their lawyers must still receive interpreting services, if Member States could adapt legislation to permit legal decisions to be framed in other EU languages than that of the country in which protection is sought, then further difficulties in the use of immigration staff from other Member States could be overcome.
10. In sum, the Member States directly concerned and the EU as a whole would guarantee the non-refoulement of the protection seekers arriving en masse for a period of between six and twelve months. During this period they would bring order to their immigration service, ensuring that they can then process all protection claims within a short period of time (a further six months to one year), while those who sat in the waiting room of 'Conditional Protection' become asylum seekers, and have all the rights attached to that status. The State also has the duty to house, feed and generally care for those conditionally protected during the whole of the initial period.
11. At the end of the maximum period of 12 months, the asylum claims must be processed, and those whose claim is accepted, that is, those judged in fact to be fleeing the conflict in the specified country of origin, may receive either unlimted protection (equal to what is now generally known as Convention status, with all our other recommendations taken into account) or a status of 'Time-limited Protection'.
12. This latter would be a status which guarantees all Convention rights and duties, but which has a time limit attached of two years (making the full period of Conditional and Limited protection three years), during which the duty of the protected to be prepared for and to prioritise return is maintained.
13. This limitation would effectively mean that Member States add a time dimension to Article 1C of the Geneva Convention, saying that they can and will withdraw status if the conditions detailed in Article 1C5 are met within those two years, and with the concurrence of UNHCR. Beyond those two years the normal cessation principles would hold.
14. If return is objectively possible in safety and dignity before the end of those two years of time-limited protection, then the duty to be prepared to return persists. However, this does not remove the duty of the Member States to re-assess the asylum claim of anyone with time-limited protection who claims return would be unsafe: there must be no refoulement.
15. If the period of two years ends without return being possible, then the State has the duty to grant unlimited protection (that is, Convention status without any time dimension) to those people who were granted time-limited protection. Unlimited protection status brings with it, in accordance with international obligations, the possibility that the cessation clause be invoked, thus ending the period of protection and refugee status.
16. This approach would allow:
a) States to live up to their obligations, and meet the fears of certain elements of society that jobs and identities are threatened, by treading a cautious path towards granting unlimited protection while maintaining the strong possibility that, circumstances permitting, a large number of protected persons will return. However its biggest advantage for the State lies in the opportunity to achieve better management of the applications procedures and assessment process, by re-organising the immigration services in line with demand. The magnitude of that demand is understood in advance, as the State knows, and keeps track of, how many protection seekers have been granted Conditional Protection. The society of the protecting State would know that humanitarian help within the safety of their State was being offered to those in need, although those same people would be waiting for full acceptance into the society.
b) Protection seekers the time to acclimatise to some of the facets of the State in which they are seeking protection. The active notion of return would be kept alive for them, within the safe boundaries of a protective State. While return is prioritised, some measure of integration need not be excluded. The disadvantage would lie in not having a secure status from the moment of arrival, in the decision on category being postponed.
c) The EU the opportunity to work together through further exchange of immigration service personnel, and the possibilities for collective decision-making in principle on groups for whom the Conditional status would be necessary, and the guidelines as to the situations in which a time-limited status could be granted.
Taking the Illegality out of Immigration
In seeking growth, prosperity and fulfilment within the European Union the Member States have accorded EU citizens the rights to move freely between the fifteen Member States. The European Union thus recognises the need for migration in promoting a dynamic and prosperous society. In view of this reality, the starting point for EU policy on immigration has to be based on a positive view of immigration, against which any restrictions must be justified.
5. Identifying Immigration as Illegal
1. The EU accepts that migration in principle has positive effects both for the countries of origin and destination, and for the migrants themselves, although this position is nuanced, as explained in Part I, in respect of forced migration. When immigration is categorised as illegal problems arise, such as:
a) the receiving country may be faced with the development of a layered society with its nationals and legal immigrants enjoying the social rights prevalent in that country, whereas illegal immigrants receive little or no social protection;
b) the illegal immigrant is therefore in a vulnerable situation, and cannot enjoy either a stable legal position or family unity as set out below;
c) the country of origin suffers a loss of international esteem and its further relations with EU Member States are increasingly tainted.
2. These negative aspects of illegal immigration often overwhelm the actual positive aspects of migration in general.
3. The first step towards addressing these negative aspects is the adoption of realistic immigration policies which meet the needs of economies and societies and therefore reduce the occurrence of illegality, without being detrimental to the beneficial impacts of the immigration itself.
4. Illegality should be the exception, rather than the norm which it is increasingly becoming in Europe. This norm is in fact the result of inadequate immigration policies, not least Member States use of asylum policies as a means of immigration control: many immigrants can only regularise their presence in the Member States by applying for asylum. The first step in reducing illegality, dealt with already in Part I, is cutting the artificial link which has been created between asylum and illegality, by providing comprehensive protection to those in need, rather than categorising them as illegal. In discussing primary immigration policies (at Section 6, below) we set out the second step, namely the principles which should reduce illegality by bringing immigration policies into line with the EUs international economic policies. The third and fourth steps (set out in Part V below, in the context of combating racism and xenophobia) are providing secure residence to long-resident third country nationals, so they can only in exceptional circumstances lose their legal status, and guaranteeing family reunification, so that family members do not resort to illegal status in order to enjoy the family life which is their right. Under circumstances where illegality occurs in spite of these measures, removal and relations with states of origin in that context become important. These will be dealt with in Section 7.
6. European Union Primary Immigration Policy
Globalizing Economic Activities
1. One of the four founding freedoms of the EC Treaty is that of movement of persons contained in Article 3c EC which finds particularity in the economic grounds of migration under Articles 39 to 66 EC. In the Community context, the objective of liberalisation of trade cannot be divorced from movement of persons, be they workers seeking employment in another Member State, the self-employed establishing themselves in business, or service providers and recipients moving among the Member States. Rare is the individual moving within the Community who is not exercising a Treaty free movement right, be it limited to service recipient, as a tourist using services, such as hotels and restaurants in another Member State.
2. The importance of the individual moving among the Member States to the realisation of free movement in other spheres cannot be overestimated. It is not just workers whom we recognise as enhancing the Community economy by moving to jobs in other Member States. So too, people moving to conclude contracts, find new markets for their goods or visit customers, play a vital role in making free movement, not just of persons, but of goods and services, a reality. In the preamble to EC Regulation 1612/68, which sets out the rules for free movement of workers within the European Community, the importance of movement of persons to improve the living and working conditions of individuals and to fulfil the needs of the economies of the Member States are equally important considerations.
3. The nature of work in the European Union is changing and there is no longer the pressing need for migrant labour that informed the 1950s. Full-time employment in manufacturing is giving way to flexible employment, much more significant levels of self-employment, particularly in consulting, and most importantly the dramatic growth of the service sector. Nevertheless, the movement of persons for economic purposes remains an objective of the European Union and critical to the success of these new developments.
4. The European Commission itself has noted that the increasing dominance of the service sector in Europe is "a harbinger of a fundamental restructuring of the world economy in which ordinary manufacturing would shift more and more to developing economies and they would become the main exporters of manufactured goods. The developed economies would mainly export services and goods with high valued added (with a high knowledge component)", (Opinion 1/94 Re: the Uruguay Round Treaties  1 CMLR 219). In such a changing world, the interdependency between the developing and developed economies can only become more pronounced. Interdependency requires people to move between the various territories to facilitate and carry out economic transactions.
5. The changing structure of the world economy is reflected in the nature of one of its institutions: the World Trade Organisation. It is committed to the liberalisation of trade and the States involved have, via the WTO and its predecessor the GATT, been making important strides in this regard for over 50 years. The European Community has played a critical role in the achievement of the World Trade Organisation Agreement and, in particular, the annex to WTO, the General Agreement on Trade and Services (GATS). The WTO in general, and GATS in particular are multilateral agreements designed to reduce barriers to trade through a comprehensive legal framework among the participating states. Twenty percent of global trade in 1992, $810bn annually, is accounted for by trade in services. Services also account for roughly fifty percent of direct foreign investment. The European Community has participated wholeheartedly in the negotiation of GATS and has been a strong supporter of the principle of liberalisation of trade in services. It must be acknowledged, however, that people are fundamental to international trade in services. Within the GATS Annex this is acknowledged through the provisions relating to liberalisation of movement of natural persons for service provision.
6. In accordance with the GATS 2000 programme, the schedules of the Agreement are to be reconsidered with a view to reducing barriers, amongst others, to the movement of persons for the provision of services. In this regulated, reciprocal, international context, an ideal opportunity is presented for the European Community to promote liberalisation of trade in services by reducing and lifting limitations on the movement of persons permitted by the commitments of the Community and its Member States under the GATS annexes.
7. Under GATS, two of the four forms of service provision either may or must involve the movement of persons. These are:-
a) Commercial presence: The presence of a subsidiary or branch in the territory of the WTO member country in which the service is to be rendered. This form of service provision corresponds to Article 43 EC, the right of establishment. In Community law, this form of activity means a company is entitled to transfer employees from one country to another in order to set up or operate a subsidiary or branch.
b) The presence on the territory of one WTO member country of natural persons from another member country, enabling a supplier from the first member country to supply services within the second member country. At the moment, the Member States have placed limitations in terms of personnel, time and sector to which such service providers may use the right under GATS.
8. In respect of both categories, the European Community has often used the liberalisation of the right of establishment and service provision by both natural and legal persons in agreements with third countries, as part of its general commercial policy. These two rights were most notably extended to the Central and Eastern Europe countries through the Europe Agreements. By these agreements the Community gave, on a reciprocal basis, a right to individuals from those states to come to any Member State to be self-employed, and for companies from those states to send key personnel to the Member States in order to establish a presence.
9. In a wider circle of agreements which encompasses not only the Europe Agreements, but also the new agreements with Morocco and Tunisia as well as many agreements with the CIS states, provision is made for liberalisation of trade in services some times by specific reference to GATS (as in the Morocco and Tunisia Agreements), sometimes without such specific reference.
10. Accordingly, there is an established policy in the European Union of promoting liberalisation of the movement of natural persons to provide services (including the self-employed and representatives of employers as key personnel), which applies not only within the Member States but also in the Union's external policy with other countries. This policy finds expression in the specific provisions of third country agreements and the European Community's participation in GATS.
11. Within the context of a primary immigration policy for Europe, this increasingly important part of European policy should be respected and promoted. The positive benefit of movement of persons for service provision (including self-employment and key personnel) should be enhanced and extended. If the European Community intends to continue to be in the forefront of seeking liberalisation of trade in services in accordance with GATS and to press for greater transparency, then it is incumbent on it to reflect this commitment through its primary immigration policy. This policy is not just about temporary service providers, but must also encompass those whose presence on the territory will be of a longer duration, of example, persons sent to set up and operate subsidiaries and branches within the Member States.
12. The idea of primary immigration itself needs to be adjusted to meet the changing economic environment. Primary immigration does not necessarily mean permanent immigration. In some cases no doubt it will - the service will continue to be in demand from the service provider, the nature of the service provision will develop into the establishment of a permanent presence on the territory of the host state and the individuals through whose work the service is provided will remain there long-term as well. In other cases it will be temporary - the service provider moving to another country where his or her services are needed. The European Union needs to accept the value of such migrants and stop demonising "permanent" immigration.
13. At the same time, the position of the individual worker should not be forgotten. Both the position of natural persons within the European Union and those coming to provide services should be protected by strict adherence to ILO norms and conventions on workers. In particular, ILO Convention 143 should be ratified by the Member States in the context of natural persons providing services within the Union. The Community framework for the protection of rights of posted workers is found in Directive 96/71. This could easily be extended to third country nationals posted to the Member States.
14. The two proposals of 27 January 1999 of the European Commission for directives on free movement of services in the internal market are directed at facilitating third country nationals moving within the Member States to provide services or employees moving on behalf of their employers. Both proposals apply only to third country nationals already established or working lawfully within the Union. However, this development also indicates the direction in which economic activity is going in Europe. Further, the Commission's move to exercise its competence under the second paragraph of Article 49 EC and give clarity to these important rights is indicative of the direction which in the European Union's immigration policy should develop as regards primary immigration.
15. The nature of work is changing, and this is having fundamental consequences for European economies. This change in itself brings greater interdependence internationally as regards trade in goods and services. The framework for liberalisation of trade in services, involving the movement of persons internationally, exists and is about to come up for review under GATS 2000. The Union should take this as its starting point for a European primary immigration policy on the movement internationally of persons in the pursuit of economic ends. The focus is on the benefit of such movement, and the Community's existing commitment to its successful achievement and liberalisation.
Converting Obstacles into Facilitators: The Union's Visa Regime
16. The Amsterdam Treaty transposes into a Union framework the Schengen acquis through the Schengen Protocol. The Schengen Protocol defines the Schengen acquis as including the Schengen Implementing Agreement 1990 and the decisions of the Schengen executive committee. One important area covered by this acquis is flanking measures to the abolition, as among the Schengen states, of border controls on persons. These flanking measures include common rules on the issue of visas for short stays within the Schengen participating states, a common visa, common rules of admission to the territory of the Schengen states from a third country, and the Schengen Information System (SIS), (which, among other information, contains the details of those third country nationals who are not to be admitted to any of the Schengen states). In this context, the development of liberalization of trade in services must not be hampered by an opaque and discretionary application of the Schengen acquis on visas and admission to the territory of the Union. As regards persons seeking a visa and admission at the frontier a number of principles need to be established:-
a) There must be a presumption in favour of issue of a visa or admission where the third country national declares the intention to enter the Union territory for a period of three months or less and states an intention to conduct business, or to provide or receive services;
b) This presumption must only be displaced by contrary evidence specific to the individual's personal behaviour on the grounds of public policy, public security or public health or if there is real evidence that he or she will seek to stay illegally on the territory or engage in prohibited activities. Any refusal of a visa must be substantiated by specific reasons given to the individual in writing and against which he or she has a right of appeal;
With specific reference to the Schengen Information System:
c) Where refusal of a visa or admission to the territory is based on an entry in the SIS, the individual shall be entitled to written notification of this fact, including the name and address of the authority in the Member State which made the entry and/or is responsible for review of that entry, together with a standard form request for deletion of the entry;
d) Where an individual applies for removal of the entry of their details from the SIS on the standard form, the competent authority shall be under a duty, within 3 months of receipt of the form, either to remove the entry and inform the individual or to maintain the entry and provide written justification for the decision together with a standard form of appeal against the decision, details of how to complete and where to send the form and the availability of legal aid. Information about the national appeal system must also be provided.
17. Opaque and arbitrary handling of visa applications is one of the greatest obstacles to the movement of service providers globally. It creates substantial ill-will which in turn dissuades people from doing business in the Union. Establishing clear rules and remedies on visas can only assist the development of commerce.
18. Further, the Union has yet to capitalise on the framework of strong co-operation agreements with substantial trading partners as a venue within which to establish the abolition of mandatory visa requirements. While abolition of such visa requirements has played a role in some association agreement negotiations, this has not been formalised in the agreements themselves. On re-negotiation of these agreements, consideration should be given to the economic benefit of reducing obstacles like mandatory visas to the movement of persons for commercial activities between the Union and the third country.
17. The Union must not be seen as purporting to liberalise trade in services, including the possibility for tourism as the manifestation of the right to receive services, while at the same time creating, by way of the Schengen visa rules, new opaque procedural obstacles to service provision and receipt. Union policy must be coherent and aimed at promoting global economic development and interdependence. Mechanisms such as cooperation and association agreements should be used to abolish obstacles to commerce, such as mandatory visa requirements on the movement of persons for commercial purposes. Such a policy is in keeping with the Union's own stated goals and its history.
7. Removal: Cooperation between countries of origin and of immigration
1. Even after the EU develops an approach to asylum and immigration addressing the steps set out above (Section 5) some attempted illegal immigration must still be expected.
2. This illegal immigration needs to be tackled, not least by overcoming technical problems relating to removal. If removal is impossible for technical reasons, then the policy contemplating removal has serious flaws. No Member State should attempt to expel a person whom it is impossible to expel, as this is to penalise the individual in a situation for which States are responsible.
3. There is thus a need for close co-operation with countries of origin, which highlights one dimension of the foreign policy elements in the comprehensive approach. Such cooperation must never be abused in an attempt to circumvent international obligations, particularly those relating to non-refoulement and statelessness. Readmission agreements with third States should only be applied after a request for residence or asylum has been carefully processed.
4. The standard for establishing citizenship where removal is envisaged must be consistent for both Member State nationals in third countries and third country nationals in Member States. Agreement on a mutually acceptable standard could usefully be pursued.
5. There may be complex reasons why an individual is unwilling or apparently unable to identify their country of nationality. Great care (including independent judicial supervision with suspensive effect) must be taken to ensure that those reasons are not based on well-founded protection grounds, before bilateral discussions on removal of an individual can commence.
6. In those situations where it becomes apparent that removal is both possible and the correct policy response, the removal must only take place in circumstances which respect the dignity of the individual concerned. Excessive detention or force should never be permitted. Maltreatment of another States nationals is likely to have a negative effect on the relations between the two States. It could also result in the (retaliatory) maltreatment of Union citizens when abroad.
7. Serious consideration should be given to regularizing the removals process through the involvement of competent non-governmental and inter-governmental organizations able to provide appropriate counseling, to make return arrangements, to promote return in dignity, and to offer at least a minimum of reintegration or relocation assistance and follow-up.
Facing up to Racism and Xenophobia in the Migration context
Racism and xenophobia are not created by the presence of (ethnic) minorities and foreigners in the European Union, but rather by intolerance of difference. One only needs to look at the fate of former Yugoslavia to understand this distinction. Therefore, measures to combat racism and xenophobia should not target immigrants, or be used to justify restricting immigration but rather challenge the attitudes of some EU citizens. One of the clearest messages which the EU can send to its own citizens and its long-resident third country nationals is that the latter belong here and that everyone has the right to personal security. This means taking a serious approach to the security of their residence status, which relates directly to the obligations referred to in Part I.
8. Long-Resident Third Country Nationals
1. The European Council and the Commission, in their joint action plan of December 1998 rightly placed emphasis on reinforcing the residence status of legal immigrants within the Union as among the first measures which need to be taken in the field of immigration now the Amsterdam Treaty has come into force. This reflection of the importance of strengthening and securing, within a European framework, the status of third country nationals permanently or long-term resident within the European Union, is critical to the social cohesion of Europe. The statement of policy points in the right direction. What is now critical is that real rights are created in implementing that policy.
2. The current situation is untenable. The depth of division of rights between the privileged migrant citizens of the Union and legally resident third country nationals, unprotected at Union level, cannot be justified. A migrant citizen of the Union going from one Member State to the other is secure in the right to seek and take work, and consequently in the right of residence, from the moment of first arrival. Third country nationals, who in many cases have been born within the territory of the Member States and spent all their formative years here, do not even have the right in Community law to seek employment in another Member State, nor do they have security of residence. This differentiation between the treatment of such long-resident third country nationals and citizens of the Union is not conducive to social harmony and cohesion. Integration policies are bound to fail if Europe's third country nationals do not enjoy security of residence and movement rights equal to those of migrant Community nationals. One result of Union failure in this area will be a rise in racism and xenophobia.
3. On numerous occasions proposals have been made for strengthening the legal status of third country nationals within the Community. A legal basis for such work has now been unequivocally established by Article 63(3) and (4) of the EC Treaty. The exercise of this competence must be informed, first, by the need to achieve equality of rights for Europe's third country nationals to work, be self-employed, study and reside with those of migrant Community nationals. Secondly, the relevant international human rights obligations of the Member States, in particular, the right to private and family life contained in Article 8 of the European Convention on Human Rights must be implemented at Union level. This provision has been interpreted by the European Court of Human Rights to protect long resident aliens from removal. The concept of an integrated alien whose right to protection from removal is assimilated to that of own nationals has been developed by that Court and its judges. A number of other Conventions of the Council of Europe, such as the 1960 Convention on Establishment and the European Social Charter also deal with the question of security of residence for aliens on the territory and need to be taken into consideration in the formulation of a Community measure.
4. Some first steps have already been taken at Community level to achieve an assimilation of rights for third country nationals legally resident in the Union. Among them are: a proposal for a Directive to give the right to travel for three months within the territory of the Union (1995); a proposal to extend the scope of the EU's co-ordination system for social security to third country nationals resident within the Union (1998); and, most recently, the 1999 proposal to give third country nationals established in the Union or who are employees of Community-based service providers, the right to provide services across the territory of the Union. Further, the Commission proposed in July 1997 a convention on rules for the admission of third-country nationals to the Member States. Articles 32-35 of this proposal provide for third country nationals who have been legally resident on a regular basis in a Member State for five years and hold authorisation which permits residence for a total period of at least ten years from first admission, equal treatment rights vis-à-vis nationals in the host State, increased protection against removal, and the right to seek and accept employment or study in another Member State.
5. By providing equality of treatment as regards security of residence and Community free movement rights, the Union will do more to eliminate divisions and discrimination between third country nationals and Community nationals than any measure which may be adopted under Article 13 (as re-numbered) EC, which gives the Community competence to adopt measures to prohibit discrimination on a wide number of grounds.
6. In order to achieve the stated objectives of the Union to secure equality and non-discrimination for all residents, the following steps need to be taken:
a) A Community measure which enables third country nationals who have been legally resident for five years in one Member State to have the right of free movement for economic purposes throughout the territory of the Union. This would introduce a right of free movement as workers, work-seekers, self-employed and service providers for third country nationals in line with that of Community nationals.
b) A Community measure giving third country nationals who have resided legally for five years in a Member State a right of permanent residence and protection against removal in line with EC Directive 64/221. This would give an equivalence of residence rights and protection from removal to third country nationals, no matter where they lived in the European Union. On the basis that free movement rights are being extended to third country nationals, so too their right of permanent residence and protection from removal also needs to be harmonised. Under the relevant Directive, it is particularly important that no person may be expelled on economic grounds: the only grounds permissible for removal are public policy, public security and public health. The European Court of Justice has interpreted narrowly these concepts of public policy and public security. An individual must constitute a real and future risk to the State before removal can be justified. Such grounds should also apply to third country nationals long resident in the Union.
c) A Community measure should be introduced which provides children born within the territory of the European Union, or who have arrived in the Union for the purpose of family reunification before the age of 15, with absolute protection against removal. The European Union must take responsibility for all persons born within its territory or raised within its territory. It is not acceptable that the European Union should seek to pass the burden of so-called "unacceptable" migrants, who have in fact been born and raised in the Union, on to third countries merely on the basis of their formal nationality.
d) Third country nationals who are employed or self-employed and lawfully resident within the European Union should be entitled to the same level of protection as Turkish workers privileged under Decision 1/80 made by the Council of the EEC/Turkey Association Agreement. This privileged position provides protection of employment after one year's employment and residence and free access to the labour market after four years. It also includes protection from removal, which is only permissible on grounds of public policy, public health and public security. Turkish workers are the largest single category of third country national workers within the Union. To extend the benefit of their privileged treatment to all third country nationals would not be so disruptive, and would provide equality of treatment between third country nationals within the territory of the Union. The current situation where a Moroccan worker, for example, who has been long resident in Belgium, has less security of residence and work than a Turkish worker long resident in Germany, is not acceptable.
7. All of these proposals are simple, straight-forward and pragmatic, which makes their introduction into Community law easy. They would result in a greater degree of equality for third country nationals resident within the Union and protection of their rights in comparison with Community nationals. The adoption of such measures would reduce the differential between third country nationals who have lived and worked for a substantial period of time in the Union, in comparison with that of Community nationals who may have arrived only the day before in the same host Member State. It would also send a clear political signal to the whole of the Union and its peoples that such third country nationals are entitled to equality. This would also be an important message to communities of third country nationals in the Union: they are fully accepted as "belonging" in Europe. Social inclusion may only then be genuinely achieved.
8. The adoption of such measures would in no way impinge on the question of first access to the territory and economic activities in the Union as a whole. Of course it would permit movement of persons from one Member State to another in recognition of the single unified labour market which is one of the paramount objectives of the EC Treaty (See Part IV). Here we are considering only the question of third country nationals who are long- or permanently resident in the territory of the Member States and who, by their long participation in the society and cultures which make up the European Union, should be entitled to security of residence and employment throughout its territory.
9. Family Unity
1. The European Union recognises and confirms that family reunion is fundamental to the exercise of movement rights in freedom and dignity (Preamble, Regulation 1612/68). It is also fundamental to integration policies. However, almost no harmonisation has been achieved in family reunification for third country nationals in the Union, and nothing has been done to assimilate the family rights of third country nationals to those of the Unions own national migrant workers. The Member States seem to be hesitant to harmonise their national policies in this field. The resolution adopted in 1992 at Copenhagen has a highly ambiguous character and is not legally binding on the Member States. The proposal made by the Commission for a Convention on entry and residence for third country nationals in 1997, which contains provisions on family reunification, has not been dealt with by the Council. Nonetheless, family reunification is a major subject of immigration law, both from a numerical and from a fundamental point of view.
2. The Community now acquires competence over this fundamental area, a competence which it must exercise so as to achieve equality and integration for Europe's resident third country nationals. The Court of Justice will of course be called upon to interpret new Community measures on family reunion. In doing so, it will help the Member States arrive at a just and equitable regime which promotes integration.
3. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. It is under a legal obligation to respect fundamental rights, as guaranteed by the European Convention on Human Rights and the UN Convention on the Rights of the Child (1989), and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
4. Article 12 ECHR guarantees that men and women of marriageable age have the right to marry or to found a family in accordance with national law. All Member States provide particular protection and assistance to the family, as the fundamental unit of society and the natural environment for growth and well-being of the family members and in particular children, to enable the family to take its full responsibilities in society. Further, as recognised by the UN Convention on the Rights of the Child, children, in order to enjoy the potential for full and harmonious development of their personality, must be brought up in an atmosphere of happiness, love and understanding.
5. In order to give effect to international obligations, national policies on families and integration objectives, the Community must, therefore, introduce measures which incorporate the following:
a) Family: any durable form of cohabitation of two people - irrespective of their sexual orientation - complying with the legislation of the state where they reside, and the cohabitation of one or more parents and the children descending from them or adopted by them according to the applicable legislation, recognised by the state where they reside or where they wish to reside; and all ascendants and descendants who are dependent on the principal or his or her cohabitee;
b) Child: anyone younger than 21 years or dependent;
c) Family reunification: the right of a family to live together with a principal (being any of the persons included in the definition of a family) on the territory of a Member State;
d) Family formation: the founding of a family by marriage, cohabitation or adoption according to the legislation of the Member State either where the family members reside or wish to reside and the right to reside with a family member on the territory of a Member State.
7. Community citizens and third country nationals residing lawfully within the territory of a Member State are entitled to family reunification and family formation. No conditions may be attached to the right to family reunification and family formation other than those which are necessary in a democratic society in the interest of national security, public safety, the protection of public order and the prevention of crime, the protection of the health or morals or for the protection of rights and freedoms of others. These requirements derive directly from Article 8 of the European Convention on Human Rights, and any exception to the principle of a right to family life must be strictly interpreted and limited. For instance, family life must not be refused solely on economic grounds.
8. No conditions may be attached to the right of family reunification and family formation which are impossible to meet or which may not reasonably required.
9. The right to family reunification and family formation may not be subject to such waiting periods or other suspensory conditions which would seriously interfere with the development, well-being or education of children of the family, or would have the effect of nullifying or impairing the right to family life.
10. Measures to fight and prevent fraud must be proportionate to the goal pursued and must not result in making it impossible for individuals to realise their genuine desire to enjoy family life.
11. Family members who are granted residence in a Member State for family reunification or family formation should have free access to the labour market of that Member State.
12. When deciding whether family members are allowed to remain in the Member State after the reasons for family reunification or family formation have disappeared, the competent authorities of the Member State should take into account all relevant interests in every individual case, including the best interests of any children involved. Further, family members should become entitled to an individual right to economic activity and residence after not more than three years residence on the territory.
13. Applications for residence by other relatives or foster children who do not meet the definition of family members should be considered by the competent authorities in the light of all relevant circumstances of the individual, including the best interests of any children involved.
14. Any individual whose application for family reunification or family formation has been refused, or whose residence permit has been withdrawn, should have a right to appeal against such decision before a competent court with power to consider the merits of the case in the Member State were he or she resides or wishes to reside. Member States should ensure that their legislation offers effective and fair proceedings before an independent court, and provides the possibility that the court may, if requested, take interim measures to prevent disproportionate injury or irreparable damage.
1. The fact that the refugee concept and the principle of non-return have a wider scope than the 1951 Convention/1967 Protocol suggest is in no small way due to developments which have taken place in the field of human rights. What is remarkable, perhaps, is the slowness with which States have been prepared to recognize this dimension when drafting legislation or policy.
European Convention on Human Rights
2. For example, the European Commission and the European Court have long held that Article 3 of the European Convention may be breached by removal, or where the removal of an individual exposes him or her to the danger of treatment contrary to that Article on arrival at the destination. As early as 1970, the Commission recognised that publicly to single out a group of persons for differential treatment on the basis of race might... constitute a special affront to human dignity, contrary to the prohibition on degrading treatment.
3. Since then, a considerable body of jurisprudence has developed under Articles 3, 8 and 14, in particular, clarifying the limits on the competence of the State to refuse admission, expel, or remove, an individual, where such action violates his or her human rights. Such limits extend far beyond the narrow categories covered by the 1951 Convention/1967 Protocol, to protect, among others, family members, long-resident non-nationals, and the seriously ill.
1966 International Covenant on Civil and Political Rights
4. All European States have ratified the 1966 Covenant on Civil and Political Rights (ICCPR66), although not all have recognized the right of individual petition provided in the Optional Protocol. Like its regional counter-part, the ICCPR66 entitles the individual to protection against torture and cruel, inhuman or degrading treatment or punishment (Article 7), and against discrimination (Articles 2.1, 14). Lawfully present non-citizens also enjoy substantive and procedural protection against removal (Article 13).
5. Like the European Court and the European Commission, the Human Rights Committee has also recognized that ICCPR66 rights may be violated in actions and decisions affecting the admission, residence and removal of non-nationals.
1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
1989 Convention on the Rights of the Child
7. Every European State has ratified the 1989 Convention on the Rights of the Child (CRC89). Among others, CRC89 protects the child against discrimination (Article 2.1), provides that in all activities concerning children, the best interests of the child shall be a primary consideration (Article 3.1), guarantees protection in regard to registration and identity (Articles 7, 8), against separation from parents (Article 9), and in regard to family reunion (Article 10). Separate provision is also made in respect of children as refugees (Article 22).
8. Notwithstanding a number of declarations and reservations, as well as the general nature of some of the obligations assumed, including those concerning family reunion and freedom of movement, the principle of effectiveness of obligations evidently requires States parties, in legislation on admission and removal and in the implementation of policies, to ensure that the rights of the child are protected.
Other relevant international standards
9. The above listing provides a summary indication of some of the more important sources of obligation which bear on the regulation of admission to, residence in, and removal from, the countries of Europe. In addition, many European States have participated in the standard-setting work of the International Labour Organization in matters affecting migrant workers, or have ratified the European Convention on the Legal Status of Migrant Workers (France, Italy, Netherlands, Portugal, Spain, Sweden, plus Norway and Turkey). These sources, and even unratified instruments such as the 1990 International Convention on the Protection of the Rights of all Migrant Workers and their Families, are also relevant to determining exactly where States now stand in matters of control over entry and removal.
10. In practice, international human rights standards and obligations have rarely been integrated into legislation, policy and practice at national and regional level. This undoubtedly contributes both to the general lack of credibility attaching to systems of management and control, and to the perennial problems of effective enforcement. An integrated approach to refugee and migration issues will need to recognize this dimension, among others, and to reflect both community and individual rights and interests.