SOC/095
Illegal immigration
Brussels,
25 April 2002
OPINION
of the
Economic and Social Committee
on the
Communication from the Commission to the
Council and the European Parliament
on a common policy on illegal immigration
(COM(2001) 672 final)
______________
On
21 January 2002 the Council decided to consult the Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community,
on the
Communication
from the Commission to the Council and the European Parliament on a common
policy on illegal immigration
(COM(2001)
672 final).
The
Section for Employment, Social Affairs and Citizenship, which was responsible
for preparing the Committee's work on the subject, adopted its opinion on
10 April 2002. The rapporteur was Mr Pariza Castaños.
At
its 390th plenary session (meeting of 25 April 2002), the Economic and
Social Committee adopted the following opinion by 97 votes to one with two
abstentions.
1. Summary
of the communication
1.1 The
communication addresses various aspects of preventing and combating illegal
immigration, and proposes action in areas such as visa policy, information
exchange, border management, criminal law and return policy.
1.2 There
is a section on guidelines, targets and requirements, in which key markers for future policy in this field are laid
down, and another on an action plan specifying
what action should be taken.
1.3 The
section on guidelines, targets and requirements
opens by pointing out that illegal immigration is multifaceted and complex, and
requires a thorough knowledge of its causes, forms, patterns and channels if
future measures are to fit the facts.
1.3.1 The
communication states that illegal immigration should be tackled without
jeopardising the ability of people who require international protection to gain
access to the Member States. In order to maintain this balance, the Member
States should explore the possibility of offering rapid access to protection,
so that refugees do not need to resort to illegal immigration. Greater use
should be made, for example, of the possibility of processing requests for
protection in the place of origin, or facilitating the arrival of refugees in
the Member States through resettlement schemes.
1.3.2 Preventive
measures necessary to combating illegal immigration include research into its
causes, support for new partnerships with the countries of origin, information
campaigns, etc. Steps to promote peace, political stability, human rights and
sustainable economic development should be taken in connection with the
countries of origin.
1.3.3 The
criminal activities associated with irregular migration flows, involving both
smuggling and trafficking in human beings, must be countered and punished
appropriately, which means that Member State criminal law needs to be harmonised.
Progress must be made on common standards for dealing with illegal employment,
the liability of carriers, and regulations on illegal entry and residence.
1.4 The
section on an action plan puts forward measures
on visas, information exchange and analysis, frontier measures, operational and
police coordination, criminal law and return policy.
1.4.1 The
significance of visa policy to illegal immigration lies in the fact that some
illegal immigration occurs when people pass through the proper border posts but
do not have the right documentation, or offer false documentation. The current
Schengen visa is a high-quality document which is effective in countering
forgery, but further steps need to be taken to improve ways of identifying the
visa-bearer. Thought should be given to the idea of setting up joint visa
posts, which would provide better technical services and equipment, at lower
cost. A European electronic visa information system is also necessary: in
addition to identification by the document itself, a further check could be
made through the relevant database.
1.4.2 Information
exchange and analysis is of great importance in understanding illegal
immigration and dealing with it appropriately. There needs to be more work on
analysing causes, methods of entry and so on. Information exchange systems must
therefore be modernised and the proposal to set up a European Migration
Observatory put into practice. The establishment of an Early Warning System, or
a permanent communication network, has also been proposed. This would allow
each Member State to report any information on illegal migratory movements
instantly.
1.4.3 Possible
steps to be taken in migrants' countries of origin and transit include the
creation of a network of immigration and airline liaison officers to coordinate
action in the countries of origin themselves. A broad package of measures is
also needed, including financial assistance for third countries in such areas
as support for asylum infrastructure, awareness-raising campaigns, training for
their public officials, expert meetings, improved border control equipment etc.
Awareness-raising campaigns would focus on the risks involved in illegal
immigration as well as other aspects.
1.4.4 Improving
the EU's external border controls requires measures such as creating a European
border guard, developing a training curriculum for border officials, or
establishing joint border teams. The creation of a European border guard school
is proposed as a future development.
1.4.5 These
proposals could be combined in order to create a single technical support
agency. This would include the European Migration Observatory, the Early
Warning System, the European Border Guard School and systems management (SIS,
Eurodac, European Visa Identification System).
1.4.6 Europol
should expand its role in detecting and dismantling criminal networks, and
should be granted further operative powers, especially with regard to
trafficking or smuggling of human beings.
1.4.7 All
the Member States must make any necessary changes to their aliens law and
criminal law in order to increase their effectiveness in tackling people
traffickers and smugglers. Smuggling is defined as action connected with an
illegal border crossing, while trafficking means exploitation of persons.
Anti-smuggling measures have been set out in a recent directive, and there is a
framework decision on combating trafficking in human beings. Fresh legislative
proposals are, however, required to deal with the situation of the victims of
trafficking. The Commission is to present a proposal on residence permits for
victims of trafficking who cooperate in investigations and criminal proceedings
against exploiters.
1.4.8 Illegal
employment of irregular migrants stimulates unlawful migratory flows and must
be tackled with appropriate sanctions: these should include charging the costs
of return and other expenses to their employers. The Member State should ensure
that this business does not pay.
1.4.9 Carriers
also bear specific responsibilities. They are obliged to take all necessary
measures to ensure that aliens are in possession of valid travel documents. The
Council has already adopted a directive on this aspect, but further regulations
and greater harmonisation are necessary.
1.4.10 Return
policy supplements the above-mentioned measures. Priority should be given to
voluntary return. Broader cooperation and joint action by the Member States is
needed regarding transit and readmission aspects: the human rights situation in
the country of origin must always be taken into account in reaching re-admission
agreements. The Commission is currently preparing a green paper on a Community
return policy.
2. General
comments
2.1 The
Committee would firstly comment on the terminology used. The term
"illegal" should be used in particular to refer to smuggling,
trafficking or exploitative activities, so that those engaging in and profiting
from such activities are considered "illegal". In contrast, some
clarification is needed when the term "illegal immigration" is used
to refer to individual migrants. Although it is not lawful to enter a country
without the required documents and authorisation, those who do so are not
criminals. Lumping together irregular immigration and crime, as the media
frequently do, distorts the facts and breeds fear-driven and racist attitudes
among the general public . Irregular immigrants are not criminals, even though
their situation is not legal.
2.2 The
Committee's initial general comment on the communication would be to express
its full support for combating illegal immigration, particularly those aspects
involving smuggling and trafficking of human beings. These criminal activities
have resulted in a new form of slavery and an illegal trade on a large scale,
which feeds on the suffering of millions of people. It is one of the greatest
scourges of our times, against which the rule of law should deploy every means
at its disposal.
2.3 The
Committee welcomes the communication's affirmation of the need to recognise the
right to international protection for those who require it and, consequently,
to combat illegal immigration without jeopardising the right of asylum. The
Committee is however convinced that this right is not sufficiently safeguarded
by the terms in which the communication is couched, particularly with regard to
carrier liability. This aspect will be discussed under the specific comments
below.
2.4 The
Committee supports the Commission's proposal to create new legal instruments
allowing sanctions for smugglers and traffickers in human beings to be
increased, and agrees with harmonisation of criminal and aliens legislation, so
that all the Member States can act with the same vigour in this area.
2.5 As
argued in the Committee's Opinion on a new Community immigration policy, the Community institutions and the Member States need to promote
new legislative instruments and enhance their political and administrative work
to prevent the illegal employment of irregular immigrants. This same need is
reflected in the communication's comments on the "pull factor"
represented by illegal employment.
2.6 The
communication takes scarce account of the Commission's own analysis of the
causes of irregular immigration in its November 2000 Communication on a
Community immigration policy. At the time, it was pointed out that one of the reasons for the
increase in irregular immigration is the lack of legal channels for labour
migrants: demand for labour exists in certain sectors of the European economy,
but at the same time current immigration policies make legal entry very
difficult. This is one of the causes of migration through irregular channels:
consequently, measures should be taken to settle the status of those who find
themselves in this situation.
2.7 Since
restrictive immigration policies, as currently pursued, are largely responsible
for many people "not having the right papers", the Commission and the
Member States should consider regularising their situation so that they can
legally obtain employment contracts.
2.8 The
Committee believes that a common policy on illegal immigration is needed as a
necessary adjunct to a common immigration policy. The Council should step up
its work on adopting the directives on family reunification, status of
long-term residents, and entry and residence conditions for new immigrants.
This would significantly reduce the problem of irregular immigration.
3. Specific
comments
3.1 In
analysing the causes and defining the objectives of a common policy on illegal
immigration, equal emphasis should be placed on two major aspects:
-
combating smuggling, trafficking and
illegal employment of human beings;
-
opening up legal channels for
migratory flows.
These
two aspects must always be considered in tandem, although the second is not
covered in the communication since it is currently under discussion in other
European Commission proposals. The issue of illegal immigration is not a matter
for the police and courts alone.
3.2 Illegal
employment
3.2.1 Steps
to combat illegal employment must be given greater importance. When illegal
employment of irregular immigrants infringes existing labour conditions
established by law, it should be defined as exploitation. The term
"exploitation" is used in the communication only when discussing
trafficking: in the Committee's view, it should also be used with reference to
illegal employment under certain circumstances.
3.2.2 Since
proper channels for legal immigration do not yet exist, in the course of their
business some employers offer work to irregular migrants, because they are
unable to find legal migrants.
3.2.3 A
minority of employers take advantage of their irregular situation to exploit
them, imposing labour and pay conditions which violate all labour standards
and/or collective agreements. A few employers also act as accomplices to the
networks illegally smuggling human beings.
3.2.4 Exploitation
of workers should therefore not be subject to economic sanctions alone: the
criminal law of the Member States should be brought to bear.
3.2.5 The
proposal to confiscate all financial gains from criminal activities relating to
irregular immigration meets with the Committee's approval.
3.2.6 The
social partners must be involved in combating the exploitation of irregular
immigrants through illegal employment. Trade unions and employers' associations
should cooperate with the public authorities to stamp out exploitation of
immigrants. The Committee agrees with the Commission's proposal to eliminate
any competitive advantages gained by employers through irregular work. The
possible future directive mentioned by the Commission could help eliminate this
problem.
3.3
Rewarding
victims who cooperate with the judicial authorities
3.3.1 Victims
of illegal work exploitation should be considered sympathetically. When
immigrant workers caught up in illegal employment are subjected to extreme
conditions, they must be seen as victims of exploitation. It should therefore
be stated that if victims cooperate with judicial enquiries into illegal and
exploitative working, they will be granted legal residence, as is the case for
the victims of trafficking in human beings (point 4.7.2 of the communication).
3.3.2 The
Committee welcomes the Commission's swift preparation of a legislative proposal
on residence permits for victims who are prepared to cooperate in
investigations and criminal proceedings against their exploiters.
3.4 Penalising
carriers
3.4.1 The
Committee would repeat in the present opinion that it opposes penalising
passenger carriers. It has already argued, in a previous opinion, that transport companies and their employees should not be
responsible for checking passengers' travel documents, as this may prevent the
right of asylum, protected by international conventions, from being exercised
by asylum seekers trying to reach the territory of an EU Member State. The
responsibility for checking travel documents should lie with qualified
officials, and could be exercised by the network of liaison officials which the
Commission proposes be set up in the countries of origin, rather than by travel
operator staff.
3.4.2 Further
to the above point, the Committee understands the term "carrier" to
mean a passenger transport company which operates in full compliance with the
law by carrying persons who have paid the appropriate fare. It does not
therefore apply to goods carriers who knowingly transport people unlawfully, a
circumstance which should be covered in any consideration of illegal smuggling.
3.5 Regularising
persons with irregular status
3.5.1 The
Committee's other main objection to the content of the communication concerns
the way irregular immigrants in the EU should be treated. The communication
speaks only of return policy: in the Committee's view, while this is necessary,
it cannot be the sole response to irregular situations.
3.5.2 Within
the framework of policy coordination, the Commission should urge the Member
States to prepare regularisation measures, averting the risk of irregular
immigration being considered as a "back door" to legal immigration.
In regularising the situation of those involved, consideration should be given
to the degree to which they have settled in social and employment terms.
3.6 Cooperation
on visa and border control policy
3.6.1 Cooperation
with the countries of origin is a crucial instrument for channelling migratory
flows on a legal basis, and for forestalling illegal immigration.
3.6.2 In
issuing visas and controlling external borders, the Member States must
cooperate with each other and comply with the obligations they have assumed. It
is worth bearing in mind that the EU's external borders are going to come under
major pressure from migrants in the coming years.
3.6.3 Coordination
and exchange of information between liaison officers is needed in order to
implement this joint policy.
3.6.4 The
Committee wishes to support the Commission's proposal to set up a European
border guard with common standards and a harmonised training curriculum. In the
medium term, steps should be taken towards the creation of a border guard
school. Border controls should be carried out by officials who are skilled in
dealing with people and possess thorough technical know-how.
3.6.5 It
is very important to provide financial assistance for third countries in
combating trafficking and in managing legal migratory flows; these require
preventive information campaigns targeting irregular immigration. The social
partners and other civil society organisations could take part in such
campaigns.
3.6.6 The
Committee would point out that priority financial assistance should be given to
the applicant countries, which will be subject to transitional periods before
their workers enjoy freedom of movement. These countries will also be asked to
make additional efforts in terms of border controls and their own immigration
flows.
3.7 Combating
organised crime
3.7.1 Europol's
role in detecting and dismantling criminal networks involved in smuggling
irregular immigrants should be stepped up. Europol should be given more
operative powers, with full implementation of Article 30 of the Treaty on
European Union. No effort should be spared in tracking down the financial
networks connected with trafficking and smuggling of human beings.
3.7.2 Eurojust
and the European judicial network should be reinforced in order to tackle
organised crime, money laundering and the networks engaged in smuggling human
beings. The Convention on mutual legal assistance merits the support of the
Committee.
3.7.3 The
Committee gives its full backing to the Council and Commission in combating
smuggling and trafficking in human beings. New criminal provisions are required
to increase penalties; these offences should fall within the remit of the
common police and judicial area being developed by the EU in order to combat
terrorism and organised crime.
3.8
European
Migration Observatory
3.8.1 The
Committee considers that the Commission's proposed action plan contains
positive elements, particularly the establishment of a European Migration
Observatory to monitor and carry out comparative analysis of both legal and
irregular migratory flows, and the creation of an early warning system on
illegal immigration.
3.9 Return
policy
3.9.1 Turning
to readmission and return policy, the Committee would emphasise that the
voluntary aspect should be encouraged, and the utmost consideration given to
humanitarian values. The Member States of the EU must not enter into
readmission agreements with third countries where serious political instability
or human rights' violations are rife. The Committee will scrutinise the green
paper on a Community return policy with great care.
4. Concluding
comments
4.1 The
Committee welcomes the Commission's proposal for civil society to be involved
in efforts to prevent and fight illegal immigration. The European Economic and
Social Committee can also contribute to the drafting of the proposed action
plan.
4.2 A
common policy against illegal immigration must take account of all its
contributory factors. It must not be restricted to law-enforcement and judicial
policies alone which, although certainly necessary, cannot by themselves
diminish irregular immigration.
4.3 The
Committee calls for greater speed and responsibility on the part of the Council
in its legislative work concerning immigration and asylum. The present delay in
drafting the directives and regulations proposed by the Commission makes it
difficult to ensure that migration takes place through legal channels.
Brussels,
25 April 2002.
|
The President
of the
Economic and Social Committee
|
The Secretary-General
of the
Economic and Social Committee
|
|
Göke Frerichs
|
Patrick Venturini
|