Caritas Europa
4,
Rue de Pascale, B-1040 Bruxelles
CCME – Churches' Commission for
Migrants in Europe
174, Rue Joseph II,
B-1000 Bruxelles
COMECE – Commission of the
Bishops' Conferences of the European Community
-
Working group on Migration -
42, Rue Stévin, B-1000 Bruxelles
Conference of
European Justice and Peace Commissions
Boltzmanngasse 14,
A-1090 Wien
ICMC – International Catholic Migration
Commission
4,
Rue De Pascale, B-1040 Bruxelles
JRS-Europe – Jesuit Refugee Service Europe
8 Haachtsesteenweg,
B-1210 Brussel
QCEA – Quaker Council for European
Affairs
50, Square Ambiorix,
B-1000 Bruxelles
Comments
on the
Communication from the Commission
to the Council and the European Parliament
On a Common Policy
on Illegal Immigration, COM (2001)
671 final of 22 November 2001
and on the
Proposal for a
comprehensive plan to combat illegal immigration and trafficking of human
beings in the European Union as adopted on 28th February
Presented by the
Presidency to the Council of the European Union (Document ST 6621/1/02 REV 1)
The
above-named organisations represent Christian churches throughout Europe, Roman
Catholic, Orthodox, Protestant and Anglican, as well as church agencies
particularly concerned with migrants and refugees.
As Christian organisations,
we are deeply committed to the dignity of the human individual. Many of the
churches’ services for migrants and refugees in Europe are facing the
problems of persons in irregular situations. It is against this background that
we feel the responsibility and take the liberty to comment on the European
Commission’s communication on a common policy on illegal immigration as
well as on the Action Plan proposed by the Spanish Presidency.
General Remarks
In May
2001, our organisations issued a comment on the communication on a European
immigration policy, in which we stated that “a comprehensive view of a
Community Immigration Policy needs to take into consideration that thousands of
migrants are living in irregular situations throughout the Union.”[1]
We therefore appreciate that this issue is now taken up and we would wish to
underline the Commission’s statement in the communication that
“illegal immigration is multifaceted in terms of the individuals
concerned and the patterns of their illegal entry and residence.” We
share the concern about increased smuggling and trafficking, as these phenomena
leave hundreds of persons in dependence on criminal organisations, result in
countless deaths at European coasts and borders and lead to new forms of slavery
in Europe. We hope that in future instruments to counter these phenomena, the
distinction between trafficking and smuggling will be made according to the
Palermo Protocols to the UN Convention against Transnational Organised Crime of
December 2000. Victims of trafficking need legally guaranteed protection, we
thus appreciate the Commission's proposal for a short-term permit for victims
of trafficking and smuggling [COM (2002) 71 final of 11.02.02] as a step in
this direction and are very disappointed that the Council is less specific
about the temporary right of residence for victims. In addition to protection
of the victims, some protection schemes for their family members in the country
of origin will have to be developed as well, if victims shall be liberated from
the traffickers. We would in this context therefore sincerely encourage that
more comprehensive approaches to protection of victims, such as in place in the
USA, would be explored.
However,
we also recognise that the increase in smuggling and trafficking has taken
place parallel to tightening of immigration possibilities and stricter border
controls. It should be remembered in this context that even refugees often have
to resort to smugglers or traffickers to escape persecution and reach a safe
place[2].
There are reasons to believe that with an opening of immigration possibilities
less people would be forced to choose these ways as their last means to enter
the EU. We therefore wish to stress, that a common immigration policy as
outlined in the Commission’s communication on a European immigration
policy and further agreement on the proposed directives on entry and residence
for the purpose of employment and self-employed activity as well as for entry
and residence for the purpose of study, training and voluntary services, an
open coordination mechanism for a European immigration policy are of prime
importance. We wish to reiterate that there are good reasons to believe that an
opening of immigration channels would result in less illegal immigration. We thus
very much welcome the recommendation of both Commission and Council that
“member states should explore rapid access to protection so that refugees
do not need to resort to illegal immigration or people smugglers”.
The
Commission’s communication analyses the problem of illegal immigration
with the “actors in the chain approach”. While we agree generally
with this analysis, we feel that the conclusions and recommendations do not
meet this analysis sufficiently. We would like to recall our appreciation for a
similar analysis in the High Level Working Group on Migration and Asylum, where
the concrete implementation also lacks the required comprehensive approach.
While we agree that illegal immigration constitutes an offence, we wish to
underline that crossing the border illegally should not be regarded and treated
as a crime. Similarly we would hope that in the fight against trafficking and
smuggling more efforts would be directed against criminal networks rather than
against individuals, particularly refugees. For fear of persecution from their
government, refugees often cannot obtain a passport or approach embassies for
visas and do not have an
alternative than to resort to smuggling networks.
Regularisation
We regard
the total exclusion of regularisation procedures when the communication states
that "Illegal entry or residence should not lead to the desired stable
form of residence" as unrealistic and not helpful. Moreover, with this
statement, the Commission risks interference in Member States’
competencies insofar as some Member States have successfully undertaken
regularisation procedures of different kind. Most of the known regularisation
procedures, e.g. in Italy, Spain, Belgium and Greece were aimed at solving an
already existing problem that persons did not have rights due to their illegal
entry, but had nevertheless been living in the country for a longer period. We
understand that it is a difficult balance which needs to be drawn and in this
context support attempts to strike up such a balance – e.g. in the
Opinion of the Economic and Social Committee on the previous Commission
Communication on a Community immigration policy (CES 938/2001 IT/PM/nm).
However, most offences and crimes have a
limitation period. We believe that this principle has a sound basis and should
be valid for illegal entry and residence as well. It is difficult to understand
that some crimes can only be punished for a certain period, but illegal entry
or residence should remain a lifelong burden, even if a person has successfully
integrated and been working in a country for several years and has more family
and other personal ties in this society than in the country of origin. We would
therefore recommend some further analysis of positive and negative consequences
of regularisation procedures, as well as a thorough analysis to which extent
regularisation procedures constitute a pull factor[3].
Monitoring
We appreciate that the Commission intends to
increase monitoring capacities with regard to irregular migration. However, we
are concerned that the monitoring is limited too much to the issue of illegal
border crossings, while one can assume that irregular migration is far broader.
The common visa system is certainly an important tool, but this requires
transparency as well as efficiency. As long as some embassies of EU member
states appear to grant visa less generously than others, appear to grant or
reject visa more on a discretionary basis than based on meeting the
requirements, or openly discriminate against certain nationalities or social
groups, current problems will persist. In addition, visa requirements ought to
be defined in a way that people can actually meet them and enable people to
travel and visit friends and family in European countries. If financial
guarantees are requested which cannot be met with an ordinary income, they are
understood as a barrier which hinders normal exchange and forces people to
circumvent existing regulations.
Some
figures would be available through humanitarian and charity organisations.
However, cooperation in the field of monitoring and making available data
requires anonymity as well as the guarantee not to be charged for facilitating
illegal residence.
We assume
that the previous regularisation procedures, including the creation of
short-term work permits in Germany and Spain, have provided the best data. We
would therefore advocate a European Monitoring mechanism for migration –
including irregular migration – as the best instrument for monitoring.
The Commission – as well as the Council of Europe's Parliamentary
Assembly – have proposed a European Migration Observatory, and we believe
the creation of such an instrument can be helpful.
Border Controls
The
control of the outside borders of the Schengen Convention states, and in the
future hopefully all EU member states as well as airports are crucial for the
future migration policy. The Commission proposes to look into common border
controls as an instrument of sharing the burden, which is even more essential
when a number of EU member states essentially do not have extensive outside
borders to be controlled. We consider the development of a European border
control with common standards and curriculum as an important aspect of
establishing an area of freedom, security and justice in Europe. The proposed
placing of immigration liaison officers is certainly a first step. We are in
this context however very concerned about the exact role of liaison
officer´ s operating in various third countries. We believe it will be very difficult
for these officers to determine ad hoc if a person seeking to reach the
union´ s territory has a legitimate claim and should thus be granted the
right to reach the territory of a member state. We also believe that a
potential cooperation of these officers with local authorities of countries of
origin poses a serious concern in those countries of origin, where Human rights
do not enjoy the same level of protection as in the Union.
As border controls are always also points of
international encounters, we would like to advocate the establishment of
European, international border guard units composed of different European
nationalities in the units. We in this context very much welcome the
Commissions statement that “a clear distinction between immigration and
respectively border control issues and police co-operation must be drawn”
(Commission Communication 4.4.1) and would like to express our astonishment
that this claim is not upheld in the proposal by the Presidency to the Council.
We would also express our expectation that in the curriculum development for
European immigration officers, existing best practice will be incorporated as
e.g. the intercultural training provided by church services to border police at
Frankfurt am Main airport in Germany. As the Commission clearly states, the
policy needs to comply with international obligations and human rights. A
thorough human rights and refugee/humanitarian training is therefore
indispensable and should include also anti-discrimination training, with
special reference to the gender dimension of trafficking and smuggling.
Without
some corruption, illegal border crossing would not be possible to the extent it
is currently taking place. We are surprised that this issue is hardly expressed
in the instruments to fight trafficking and smuggling in human beings. We are
convinced that this is important to be addressed as this is part of the
criminal organisations' networking.
Irregular
migrants in economy and society
The
majority of irregular migrants are neither criminals nor eager to benefit from
the social system. Instead, they look for employment and work under unprotected
conditions, many in rural and agricultural sectors, providing domestic cleaning
and care services, as well as employing their skills on building and
constructions sites, in restaurant and hotel services etc. The society and the
economy of the EU member states benefit, but of course they also face the
negative side, that no taxes and social contributions are paid. We share the
view expressed in the Commission’s communication that employers need to
be held responsible in these cases. We are thus very surprised that this aspect
is neglected in the proposal to the Council. We would also hope that persons
who have been exploited due to their irregular situation could be better
equipped to claim compensation. While in principle this is already possible, in
practice this is hardly achieved as irregular migrants are repatriated or
deported as quickly as possible. In many countries of origin, however, it is
not at all easy or even possible to lay charges. And due to the illegal entry
or residence they will not be granted a visa to participate in a court case as
a plaintiff or witness. We believe that these procedures need to be made far
easier in order to achieve a real liability of those who profit most from
irregular migrants' work. In general we would also encourage further
exploration how schemes of issuing temporary work permits to migrants can help
or indeed already did help to both reduce illegal migration and meet the demands
of the economy in EU member states.
Return measures
We
recognise the need for a joint approach regarding return measures as a part of
a comprehensive approach to illegal immigration. We thus welcome the opening of
the debate by the Commission’s Green Book on a Community return policy,
on which we shall comment in the near future. For us it is important to already
now express our support for the principle of the priority of voluntary return
over forced return, as stated in the Commission’s communication but
omitted in the Council’s plan.
Regarding
another guiding principle in this field we would equally like to support the
Commission’s statement that “before the negotiation of any
readmission agreement the political and human rights situation in the country
of origin or transit should be taken into account” and would like to
express our concern that this part was omitted in the Council´ s decision
Conclusion
In conclusion, we wish to reiterate our view
that migration in general should not be treated as a phenomenon which needs to
be prevented. We had welcomed the approach to immigration as it had been
expressed by the Tampere Council in October 1999 and stated in the Commission's
Communication on Immigration and many statements by Commissioner Antonio Vitorino.
We share his view that migration is a fact which one can manage and influence
with the right instruments, but not prevent as such. We are concerned that it
seems far easier to reach agreement in the Council on common control mechanisms
than on common migration and asylum policies. Thus the careful and necessary
balance in the comprehensive approach is lost. We thus welcome the
Council’s suggestions for a timely evaluation of the action plan but
would in line with the Commission’s Conclusions highly appreciate the
involvement of Churches and other organisations in Civil Society in this
evaluation. The Churches and church agencies would be most happy to assist in
this context.
We wish to reiterate the
Churches' recognition of migration as a twofold right, to leave one’s
country and to look for better conditions of life in another country. We are
aware that an entirely “open door policy” is not conceivable and,
certainly, migration (policy) will not solve the challenges of global imbalance.
Nevertheless, the exercise of such a right needs to be seen in the context of
the global common good and justice, and not only in the context of control and
limitation measures.
Brussels, May 2002