JUST ANOTHER
EUROPEAN DREAM?
Why did the
communitarization of immigration and asylum policies
almost fail and
how we should revive it
Ferruccio Pastore
(Centro Studi di Politica Internazionale, CeSPI)
Paper presented at the
international seminar for experts organised by the Cicero Foundation on
“European Migration and Refugee Policy: New Developments”
(Rome, 15 November 2002)
1. The Schengen model and the
Tampere approach: from functionalism to “comprehensivism”
If we agree, as I think we should,
that the communitarization of immigration and asylum policies in the EU has not
worked properly (not until now at least; not as we hoped); if we agree that the
Tampere programme was a partial failure, in this case, my question, our central question has to be why?
You may say that this is an obvious
question - and it is as a matter a fact - but I think that the answer is not.
In order to find such answer, it is useful to go back rapidly to the origins of
the communitarization project.
As you all know, European cooperation
in the field of immigration and asylum is a relatively recent phenomenon. In the post-World War
II period, European countries of immigration competed among themselves; they
did not cooperate.
And it was a competition aimed at securing the "best" immigrants, at signing the
most advantageous labour immigration agreements with sending countries, both
Southern European and non-European ones (most of the time, the latter were
former colonies).
Even when traditional European
immigration countries decided, in the early 70s to shut the door to new legal
entries for economic purposes, that crucial decision was taken by each country
in a uncoordinated, competitive way. National borders were closed without
considering the possible impact of such closure on the neighbouring countries,
not to speak of the impact on the countries of origin.
And yet there was such an impact. And it was a
substantial, a powerful one. For instance, in the quick start of mass migration
to Southern European countries, to Italy in particular, the sudden closure of
the French borders did certainly play a role, and not a minor one.
So, the past of intra-European
relations in the field of migration management is one of competition, rather
than cooperation. The only convergence existed between Mediterranean
labour-exporting countries and Continental labour-importers. But also that
limited convergence ended early and did not last, however, after 1973-4.
European cooperation in the field of
immigration management began only some years after. And it started as a very
practical, down-to-earth, functionalist endeavour.
You know very well what it was all
about. European leaderships believed in the need to accomplish the economic
integration of the continent. This implied - as the European Single Act of 1986
put it - the construction of an area of free circulation, not only for goods
and capitals, but also - as much as possible - for people.
There were at least two reasons for such strategic choice: the more
structural one was the shared conviction that free circulation of workers would
guarantee an optimal allocation of labour forces in the Single Market.
A more contingent reason was that,
during the late 70s and all through the 80s, border controls (which were often
hampered and slowed down by frequent strikes) proved more and more costly, in bare economic terms.
That was how - following a classic
technocratic and functionalist European decision-making pattern - five
governments decided in Schengen (1985) to suppress internal border controls
among them.
But while that decision was being
taken, security concerns started to spread among security professionals first,
and among politicians next. If we abolish internal borders - this was the
mantra - we need to adopt "compensatory measures" at external borders, in order
to avoid that the completion of the internal market affects negatively the
overall internal security of our borderless space. This was the
techno-political logic below the Schengen convention signed in 1990, and it was
basically the dominant paradigm during most of the 90s.
But that technocratic and
functionalist paradigm, although apparently very pragmatic, soon showed its
limits:
institutional limits, due to the tight "unanimity
jacket" typical of its purely intergovernmental nature;
but also political limits, due to its weak democratic
legitimacy (to say the least) and to its narrow strategic horizon.
The Amsterdam treaty created the legal possibility to go beyond that horizon. But it was only the
Tampere summit - as you know - which really opened the political door.
Under the Finnish presidency, the
European Heads of State and Government pushed their political will and their
rhetoric beyond functionalism. In the framework of a broad strategy aimed at
building a European "Area of freedom, security and justice", a comprehensive approach to immigration and asylum
was adopted.
The aim of common migration policy
was no longer limited to compensate the potential negative impact of the
suppression of internal borders. The ambitions grew dramatically: not only
controlling efficiently common borders, but managing efficiently legal
immigration, promoting social integration of migrants, combating
discrimination, ensuring international protection to those in need, and also
struggling against the causes of forced migration worldwide, and preventing illegal economic
immigration through development cooperation.
All this (and more than this) was in
the Tampere Conclusions of October 1999.
But this impressive expansion of the
agenda - which we can summarize as a shift from functionalism to
"comprehensivism" - was not the only innovation of the late 90s in this field.
While raising their ambitions, the
governments of several MS developed a new discourse to legitimize European action in
the migratory field in front of their constituencies. The common immigration
and asylum policy was not presented any more as a compensatory strategy aimed
at allowing the abolition of internal border controls. It was explained, on the
contrary, as a direct response to the needs and preoccupations of European
citizens and enterprises.
So, beside the shift from
functionalism to "comprehensivism", we witness a parallel shift from
an indirect/technocratic legitimation discourse towards a more direct and
"democratic" (on certain occasions even slightly
"populist") strategy of legitimation.
Besides conceptual and political
innovation, the post-Amsterdam phase was also marked by a significant amount of
methodological
innovation in the European decision-making on migratory issues. I will not
dwell upon this aspect and will just limit myself to pointing out the novelty
of certain approaches by the Commission. I am thinking of that ambitious
attempt at interinstitutional coordination which is the "Scoreboard"
and also of the more targeted open coordination methods proposed by
Commissioner Vitorino both in the field of asylum and of immigration.
2. Laeken-Sevilla: the European
pendulum swings backwards
What did all this bring as concrete
results?
First of all, we have to say that
the European Commission was very zealous and efficient in its propulsive
function. On almost every item of the agenda, a legislative proposal was issued
on time. It has to be acknowledged, though, that the quality of these proposals
was not always the same and in some cases it was not totally satisfactory.
These limits have to be acknowledged, but the main reasons for the
disappointing mid-term assessment which was made in Laeken (December 2001) are
certainly not on the Commission's side.
The most evident reason of the slow
implementation of the Vienna Action Plan and of the Tampere manifesto certainly
lies in the passive resistance opposed by national sovereignties to normative convergence and
supranational harmonization. And it has to be reminded that such resistances
existed in spite of the high degree of, so to say, "genetic"
flexibility introduced in this field by the British, Irish and Danish opt-outs
made in Amsterdam.
Besides this structural and
encompassing explanation of the delays in the communitarization process,
another explanation - a more contingent one - can be given. I am obviously
thinking of the political changes which have taken place in many MS since the
Fall 1999.
At the Tampere table - as you are
all aware - there was a majority of progressive, or Centre-Left, government
representatives. Since then the situation changed in many countries among which
Austria, France, Italy, The Netherlands and Portugal.
We should be careful - I think - in
not overstating the influence of the political/ideological variable in shaping
actual migration policies of the States (I am talking about actual policies,
not about discourses, which is obviously something different). But certainly in
some of the countries I just mentioned there were substantial changes, and
especially on some of the topics being currently negotiated at the EU level.
This political evolution brought to
a narrowing of
the agenda and to the imposition of stricter guidelines to the
Commission’s right of initiative. I am thinking particularly of the
explicit request by the European Council to the Commission to reformulate the
directive proposals on asylum procedures and on family reunification.
The trend towards a much more severe
selection of priorities was only reinforced by the September 2001 terrorist
attacks which certainly affected the European policy-making, particularly in
certain areas, such as visa policy.
One further explanation can be given
of the obstacles met by the communitarization process. And it concerns once
again the problematic relation between national and supranational
decision-making circuits.
Migration legislation - as you know
- is a constant work in progress. The rapid evolution of migratory phenomena
calls for frequent normative adjustments. Furthermore, the strong symbolical
dimension of immigration policies in contemporary Europe often pushes new
governments to make their own laws in order to show that they are different from their predecessors.
All this was quite apparent in the
last couple of years in Western Europe. Most MS reformed their national
legislation. And so did, in particular, some of the crucial players in the
communitarization game such as Germany, Spain and Italy.
At a certain point, the Commission
tried to oppose such trend by invoking a standstill clause which would have imposed a
legislative moratorium until European parameters were defined.
But unsurprisingly the opposite
happened. On some key subjects, such as family reunification, it was the
European decision-making process which was blocked, in order to allow national
Parliaments to take their own decisions in an unrestricted way.
In other words, we witnessed very
clearly the functioning of a domestic priority and of a “reverse standstill clause”.
Now, only a year and a half
separates us from the 1st of May 2004, when the transition period
set in Amsterdam will expire. It is quite evident, by now, that
communitarization will take place only to a limited extent. On some subjects,
such as admission for economic purposes, it is quite unlikely that any communitarization will take place.
But was is even more important (and
disappointing) is the quality of such partial communitarization. It is very clear that on crucial
issues, such as asylum procedures and family reunification, it will be a poor
quality communitarization.
It will be a convergence to the
bottom, where the common minimum standards will very often coincide with the lowest
common denominator.
This is very disappointing not only
in itself, but even more in connection with enlargement, as the message sent to
new members is one of great rigour on immigration controls and a different one,
of a great flexibility, on migrants' rights.
3. Structural explanations of the
crisis of the Tampere approach
Most of what I said until now
reflects a set of knowledge and beliefs which is widely shared among academics,
immigration and asylum NGOs, and also in many institutional circles. Now, I
would like to try and go beyond that. I would like to try and go a little bit
more in depth and ask: are we sure that the crisis of the Tampere approach can
be explained only and entirely with the Member States' jealousy of their national sovereignty and with the recent electoral results
in some European countries?
What I would like to suggest is that
maybe there is also another possible explanation - a very basic one - which
concerns the socio-economic foundations of migration policy and plays on the
great diversity of such foundations among MS.
The current Members of the EU have
very different experiences and problems with international migration.
Some have been countries of
emigration until very recently; others are receiving countries since more than
one century.
Some are geographically very exposed
to spontaneous and irregular flows. Others are more protected, at least against
direct illegal
entries through "blue" and "green" borders.
In some MS, the economy - both the
official and the hidden economy - expresses a strong demand for unskilled
foreign labour. In other MS, this segment of labour demand is either undeclared
or covered by internal deposits of unexploited labour offer. In some cases, the
second (and the third) generation of former immigration waves play an important
role from this point of view, insofar as they are still relatively marginalized
in national labour markets.
In some EU countries, there is a
strong demand for skilled and high-skilled foreign labour, which
is - on the contrary - much weaker
in countries in which the knowledge-intensive sectors of the economy are still
quite small.
And other important structural
differences appear in the field of asylum. As a matter of fact, during the
1990s, asylum policies have emerged as one of the main, if not the main factor of imbalance in the European
admission system conceived as a whole.
So, there was and there is a great amount of structural
diversity among MS in the migratory field. The social, cultural and economic
realities of international migration differ widely in each national context.
Consequently, also the political
priorities differ: each country has its national debate and its material and
symbolical political cleavages: regularisation in today's Italy, compulsory
language courses as an integration tool and family reunification in
today’s Germany (it was double nationality yesterday), vouchers or other
kind of assistance for asylum seekers in the UK, and so on.
Obviously, some countries share
analogous problems: for instance, the divide between "old" immigration countries -
basically Continental Europe, the British Isles, Scandinavian countries to a
certain extent - and "new" immigration countries - the Mediterranean ones - is a very
substantial divide, which has not been focused early enough and clearly
enough in EU
policy-making.
In fact, what happened in Tampere is
that the nature of immigration and asylum as common issues calling for common policies was strongly emphasized,
maybe too strongly.
This was very understandable in the
context of a shift towards "comprehensivism". As it is undisputable
that, if the strategic aim is not only to manage actual flows, but also to
tackle their "root causes"; well, in that case, a European common
policy is certainly necessary.
But, in spite of the proclamation of
the need for a comprehensive approach, the decision-making model remained the
old one: separate proposals for each item, and separate negotiations on each
proposal.
And here is the trick! Here is where
functionalism is back. A short-sighted functionalism which gives way only to
those decisions which correspond to short-term interests of bureaucratic and/or
political nature.
And in all those cases in which a
real compromise among such diverging sets of interests cannot be established,
well in all those cases it is very likely that communitarization will be but a photography of what already exists. A rigid
codification of the minimum common denominator. An outward, or even worse a regressive harmonization.
4. Migration policy and the
future of the European Union
One could then conclude: well,
Tampere was just an exercise of wishful thinking. Now, we are back on earth,
the good, old, solid earth of European, step-by-step functionalism. No
conclusion - I believe - could be more flawed and dangerous.
Certainly, Tampere was also a wishful thinking exercise. It was
also a political
show. But not just that. It was an epiphenomenon of a phase of a certain
cultural growth in
Western European attitude towards international migration. A phase of cultural
maturation which followed years of irrational discourse, of induced fears, of
"fortress syndrome".
And that sort of growing social and
cultural maturity implied an expanding awareness of the magnitude of
international migration as a political issue. An expanding awareness of the
impossibility to "solve the immigration problem". Of the need to coexist with migration,
to face it positively, although not naively, to make any effort in order to
maximise its positive impact and to minimise its possible negative
side-effects.
Unfortunately, cultural and social
awareness are not conquered once and for all. And it seems that we are now,
again, in a phase in which the pendulum of collective rationality on migration
issues swings back.
But I am not pessimistic. There are
some encouraging signs. One, and a major one, is EU enlargement.
As a matter of fact, enlargement is also a grandiose migration management
strategy. Shifting
the common external border to the East and widening enormously the area of
freedom of circulation. These are two spectacular policy moves.
It is true that both moves are
conditioned by transition periods: a formal one for granting freedom of circulation for
economic purposes to nationals of new MS, an informal waiting period for admitting fully the new Members
in the Schengen space. But, also considering these questionable precautionary
measures, the relatively easy closure of the relevant negotiation chapters with
ten candidates is a significant success, although a temporary and partial one.
In order to go beyond, it is
necessary to identify very clearly and surmount the factors of the partial
failure of the Tampere approach.
One is the institutional factor, and particularly the straitjacket
of unanimity, which
almost killed the communitarization process.
This need is being debated in very
explicit terms within the WG on JHA of the European Convention, together with
the need to strengthen the political and executive branch of the European
migration policy, possibly through the appointment of a Mr/Mrs JHA, endowed
with stronger powers than the current Commissioner (for instance, political
guidance over a European Border Guard and a reinforced Europol), who could
flank a reformed Mr/Mrs PESC and hopefully a Mr/Mrs EMU.
The real question here is: which
should be the institutional nature of such a Mr/Mrs JHA? Should he/she be one
of a few super-Commissioners, the core of a full-fledged European executive
body responsible before the European Parliament, or should he/she be just a JHA
version of the current Secretary General of the Council, coexisting with a JHA
Commissioner?
Besides the institutional factor,
there is also a more substantial, political factor.
I believe that a comprehensive
approach to migration management is necessary, but I also believe that the
Tampere agenda was probably too wide.
“More Europe” is
certainly needed in order to tackle the root causes of forced migration and to
struggle in a just and sustainable way against illegal migration. From this
point of view, not only a common migration policy is needed, but also a strong
and courageous common foreign and security policy.
As a matter of fact, migration
policy -if it is framed in a comprehensive way - is an overarching policy
field, with large overlappings with foreign policy outside and with social
policy inside.
But in other areas, I am thinking
primarily of admission policy for economic purposes, the European Commission
has probably been too ambitious or too optimistic.
Times are probably not yet ripe for
harmonizing labour immigration policies alone. A real communitarization in that field
will probably be possible only in parallel with a much more vigorous
streamlining of national economic and social policies. And this, let me express
a personal belief and a hope, will be the next great challenge for Europe.