Marie-Laure Basilien-Gainche, “The EU immigration and asylum policy in the post-Lisbon institutional context”, dans Luca Rubini et David Robertson (ed.), The Treaty of Lisbon and the Future of European Law, London, Edward Elgar Publishing, 2012, pp. 355-378.
The Council of the European Union (EU) declared, in the Conclusions on the follow-up of the European Pact on Immigration and Asylum during his Justice and Home Affairs meeting on 3 June 2010, that the Lisbon Treaty introduces new provisions on such policy areas that must be “governed by the principle of solidarity and fair sharing of responsibility”.1 Solidarity and responsibility: here are quite noble values. Still, it would be appropriate if these were defined along legal principles and respected by the normative and operational acts of the EU and its Member States. This is why these Conclusions deserve further attention. Indeed, one cannot forget that often “Political language... is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind” as George Orwell put it.2 And one cannot neglect that the European agenda is particularly burdened in these fields, as the Commission is supposed to ensure the implementation of the Stockholm program adopted by the European Council on 11 December 2009.3 As the April 2010 action plan announced it,4 Cecilia Malmström – the Swedish Member of the Commission responsible for Justice and Home affairs – was to present a series of legislative proposals dealing with legal immigration. A framework Directive was supposed to be drawn up on a single application procedure for a single permit for thirdcountry nationals (TCNs) to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. Four additional Directives were prepared dealing with entry and residence of certain categories of third-country nationals, namely the highly skilled workers, the seasonal workers, the remunerated trainees, and the intra-corporate transferees. Cecilia Malmström also has to prepare the next stages of the management of EU borders: 2011 marks the start of her review of the Member States’ national asylum systems; leading to a proposal in 2014 on the joint processing of asylum applications aimed at enforcing mutual recognition of refugees’ rights. To begin with, some statistical data must be presented5. On 1 January 2008, third-country nationals in the EU were about 19 million (3.9 per cent of the EU population), 10 to 17 per cent of them being illegal. Europe is absorbing each year roughly 2 million migrants. In 2008, 1.62 million migrants obtained a residence permit, and some 600 000 remained in an irregular situation. Thus, 609 000 illegally staying third-country nationals were arrested and 608 000 return decisions were ordered. The number of asylum applications received by Member States has increased, their number reaching 240 000 in 2008. Nevertheless, only 65 000 of them led to the granting of refugee status. So the EU welcomes 14 per cent of the world’s beneficiaries of international protection, which is less than one refugee for 2 200 European citizens
http://register.consilium.europa.eu/pdf/en/10/st10/st10302.en10.pdf, p. 2. Orwell, George, (1964), “Politics and the English Language”, Horizon, GB: London. 3 http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/111877.pdf, pp. 3-11. 4 European Commission (2010), Delivering an area of freedom, security and justice for Europe's citizens -Action Plan Implementing the Stockholm Programme, COM(2010) 171 final, 20 April 2010. 5 European Commission (2010), First Annual Report on Immigration and Asylum, COM (2010) 214, 6 May 2010. 1 2
Yet, either voluntary or forced, for political, social, economic, ecologic, or environmental reasons, the migrations of third-country nationals will increase, so much so that their status would need to be determined in order to grant them the international protection they could ask for. 6 According to the estimates about future migrations, in particular those related to climate change, this phenomenon will be without precedent. Out of a world population of 9 billion inhabitants in 2050, the number of migrants and displaced people could oscillate between 150 million (according to 2005 Myers works quoted by the 2007 Stern review7) and one billion (in the light of populations’ behaviours of anticipation and adaptation). In such a global context, EU action has been catalysed by some tangible events. First, the enduring public perception that immigration numbers are too high was strategically used by nationalist political parties. Second, the gradual removal of internal border controls renewed concerns about Europe’s leaky Eastern and Southern borders. Third, the panic caused by the dramatic terrorist attacks of 11 September 2001 (‘9/11’) in New York and Washington DC and 11 March 2004 in Madrid paved the way for promoting the fight against organised crime and the defence of internal security, at the cost of the reduced protection of fundamental rights. 8 Fourth, the economic downturn reinforced the European governments’ tendency to shift their immigration and asylum policies further in the direction of control. The legal bases or foundations for such a policy orientation are undisputable: the Schengen agreement (1985); the Maastricht Treaty (1992) which recognises the cooperation in Justice and Home Affairs (the old pre-Lisbon EU third pillar); the Convention implementing the Schengen Agreement (1990); and the Amsterdam Treaty (1996) which communautarised migration-related issues by incorporating a new title on visas, immigration, asylum and free movement of persons in the then EC Treaty.9 The orientations are clear: the European Council put these subjects on the top of the agenda, as it appears in the Conclusions of the summits of Tampere in 1999, Seville in 2002, and The Hague in 2004. The objective is to create an Area of Freedom, Security and Justice (AFSJ) in general and to draw up a European immigration and asylum policy in particular.10
Cournil, Christel & Colard-Fabregoule, Catherine (eds) (2010), Les changements climatiques et les défis du droit, Bruxelles: Bruylant; Cournil, Christel (2010), “Les réfugiés environnementaux: enjeux et questionnements autour d’une catégorie émergente”, in Revue Migrations et Sociétés, 128, Dossier spécial Fixer les mobilités: usages et paradoxes des catégorisations en migration, mars-avril 2010, pp. 69-79; Cournil, Christel (2010), “Émergence et faisabilité des protections en discussion sur les réfugiés environnementaux”, in Revue Tiers Monde nº204, pp. 35-54. 7 Stern, Nicholas (2007), The Economics of Climate Change: The Stern Review, UK: Cabinet Office - HM Treasury. 8 Berthelet, Pierre (2002), “L’impact des événements du 11 septembre sur la création de l’espace de liberté, de sécurité, et de justice”, Cultures & Conflits, 45 & 46, De Tampere à Séville : bilan de la sécurité européenne, ; Guild, Elspeth, “International terrorism and EU immigration, asylum and borders policy, the unexpected victims of 11 September 2001”, in Carr, Fergus & Massey, Andrew (eds) (2006), Public policy and the new European agendas, UK: Edward Elgar Publishing, pp. 233-249; Stangos, Pétros (2007), “L’engagement européen contre le terrorisme international. Questionner l’impact de cet engagement sur la protection communautaire des droits fondamentaux”, in Annuaire international des droits de l’Homme, II, Bruxelles: Bruylant, pp. 161-180. 9 Edström, Örjan & Julien-Laferrière, François & Labayle Henri (eds) (2005), La politique européenne d'immigration et d'asile : bilan critique cinq ans après le traité d'Amsterdam, Bruxelles: Bruylant; Bigo, Didier & Guild, Elspeth (2005), Controlling frontiers: free movement into and within Europe, UK: Ashgate. 10 Berramadane, Abdelkhaleq & Rosetto, Jean (eds) (2009), La politique européenne d’immigration, Paris: Karthala; Barbou des Places, Ségolène, “Droit communautaire de la liberté de circulation et droit des migrations: où est la frontière?”, in Masclet, Jean-Claude & Ruiz-Fabri, Hélène & Boutayeb, Chahira & Rodrigues, Stéphane (eds) (2010), Union de droit, union des droits - Mélanges en l'honneur de Philippe Manin, Paris: Editions Pédone, pp. 341-357; Favell, Adrian (2010), “Immigration, migration et libre circulation dans la construction de l’Europe”, in Politique européenne, 31 Les effets de l’européanisation des politiques d’immigration. 6
The latter saw its directions established under the French presidency by the pact adopted on 16 October 200811 which makes the following commitments: to organise legal immigration and encourage integration taking into account the priorities, needs and reception capacities of each Member State; to control illegal immigration by ensuring that illegal immigrants return to their countries of origin or to a country of transit; to reinforce the effectiveness of border checks; to create a comprehensive partnership with the countries of origin and of transit (the so-called “Global Approach to Migration”); and to build a Europe of asylum. As the achievement of this fifth commitment has been delayed by the Belgian presidency, the European focus seems to be on the struggle against illegal residence and work. So we can wonder what place remains there for the principles of solidarity and responsibility. What sort of solidarity between the EU Member States? What sort of solidarity with the migrants and displaced people? What about the responsibility in sharing the burden of the reception of migrants’ flows? What about the responsibility in guaranteeing to the migrants the protection of their fundamental rights? These points have to be studied, as the new immigration and asylum package adopted by the European Parliament on 7 May 2009 is about to be applied. Various norms are to be modified: Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers; Council Regulation 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national; Council Regulation 2725/2000 of 11 December 2000 concerning the establishment of EURODAC for the comparison of fingerprints of the asylum seekers. The creation of the European Asylum Support Office (EASO) based in Valletta (Malta) must also be mentioned: its mission is to provide support for Member States facing particular pressure from asylum applications, and to contribute to the implementation of a common asylum system in the EU. Thus an analysis of the European immigration and asylum policy in the new institutional context which the Lisbon Treaty has established seems of utmost importance. In the AFJS in general and in immigration and asylum fields in particular, the powers of the European Parliament have been increased and those of the Court of Justice have been improved. Thus, the Lisbon Treaty could appear as opening the door to a new phase in European integration. Nevertheless, it would be quite hazardous to forget that the Lisbon Treaty provisions let the intergovernmental approach encroach upon the supranational ambitions. And it would be at the very least adventurous to neglect that the objectives of the European Pact on immigration and asylum let the Member States’ security purposes take priority over the respect for the migrants’ dignity.12 The ideal principles that are proclaimed again and again appear to be quite mistreated: the common ambition of a truly European immigration and asylum policy is contradicted by nationalist trends; the fundamental rights of all are afflicted by the irrational fear of some. The solidarity in the EU and of the EU, as well as the responsibility of the Member States for migrant populations, seem at least for the moment to be sacrificed for the sake of ‘fortress Europe’. This highlights the current tensions: between the defence of Member States’ borders and the protection of migrants’ rights; between national security and individual dignity; and between national concerns and European purposes.
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/103441.pdf Flaesh-Mougin, Catherine (ed) (2009), Union européenne et sécurité: aspects internes et externes, Bruxelles: Bruylant.
1. A European ambition versus nationalist tendencies: is there any solidarity in the EU? Ever since its creation, the immigration and asylum policy has never followed the traditional integration logic, and has preferred to apply an intergovernmental approach. Such a choice has been pragmatic, as it has let the EU deal with some classic Member State prerogatives. But the AFSJ has been hampered by structural weaknesses. First, since the Treaty of Amsterdam has separated justice and home affairs issues between the First Pillar (immigration, asylum, visa and civil justice issues) and the Third (police and judicial cooperation), a rather genuine complexity has emerged that has created difficulties in dealing with such transversal problems. Second, the Third Pillar’s intergovernmental nature has hindered efficient decision-making in relation to some asylum and immigration issues: the unanimity rule which has prevailed in the Council has slowed down, or even blocked, the adoption of harmonisation; the limited jurisdiction of the Court of Justice and the impossibility for the Commission to launch infringement procedures have postponed the uniform implementation of the asylum and immigration measures. Third, the deepening and widening of the EU by the extension of its scope to justice and home affairs have generated the emergence of a geographical fragmentation based upon thematic opt-outs: here we are thinking of the exemptions the United Kingdom, Ireland and Denmark have obtained on the Schengen acquis, and immigration, asylum and visa matters. Fourth, the almost inexistent role of the European Parliament in this field has strengthened the tendency for the Member States to focus on security measures to the detriment of fundamental rights. Improving the decision making process and the EU law uniform implementation seems to be the reason why with the Treaty of Lisbon the provisions of Title IV, Part Three TEC and the ones of Title VI TEU have been merged in the Title V, Part Three, of the Treaty on the Functioning of the European Union (TFEU). So, the AFSJ in general and the immigration and asylum policy in particular, are now largely supposed to be governed along the same lines as the rest of the Union internal policies. However, the general provisions exposed in the First Chapter of Title V TFEU remind us in Article 72: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. Moreover, in its Conclusions adopted in June 2010, the Council of the EU reaffirms the principle of subsidiarity: “[…] in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” Hence it is easily understandable why certain specific characteristics still hamper the asserted promotion of an integrative dynamic and organise the problematic persistence of a national logic.13 That is why the system of burden-sharing between Member States for the reception of asylum seekers and migrants keeps on being so limited and deficient.
Berramdane, Abdelkhaleq (2008), “Le traité de Lisbonne et le retour des Etats”, in Semaine Juridique, n°9-10, pp. 23-28. 13
1.1 A relative democratisation of the decision-making process The Lisbon Treaty potentially provides the necessary tools to promote an integrative dynamic in the AFSJ.14 Besides, the latter’s development is listed as the second objective of the EU, meanwhile the achievement of the internal market appears as the third one (Article 3 TEU Lisbon). All the concerned provisions are gathered in Title V TFEU: it formally puts an end to the Third Pillar, and reflects the will to reduce intergovernmental predominance, which has prevailed for years on immigration and asylum questions. First of all, such matters will no longer be governed by the specific legal instruments the Third Pillar designed: the EU institutions will no longer have to prepare and adopt Common Positions, Framework Decisions, or Decisions JHA, which do not have direct effect within national legal systems. Thanks to the Lisbon Treaty, Regulations, Directives, and Decisions will be used to deal with immigration and asylum issues and thus, will give European citizens direct judiciable rights. Yet, the Court of Justice’s jurisdiction has been extended because the Treaty of Lisbon suppressed the restrictions to hear preliminary references, actions for annulment and actions for non-contractual liability about immigration and asylum matters. What is more, the binding nature of the EU Charter for Fundamental Rights, discussed in the chapters of Part II of this book, strengthens the Court’s capacity to ensure respect for such rights in EU law, even though its application is restricted in the United Kingdom and Poland. The Commission has also obtained the power to launch infringement procedures against Member States regarding the implementation of immigration and asylum measures. Moreover, greater collaboration between EU institutions and Member States is promoted, as the ordinary legislative procedure will be used for almost all asylum and immigration issues. The European Council shall define the strategic guidelines for legislative and operational planning within the AFJS (Article 68 TFEU). The Commission’s right of initiative is reinforced (Article 172 TEU), although Member States still have the right to make proposals if one-quarter of them agree to launch an initiative in field of police and judicial cooperation in criminal matters (Article 76 TFEU). The application of the Qualified Majority Voting in the Council should make it easier to adopt legislative texts, scraping the national vetoes that existed before. And co-decision between Council and European Parliament is the rule from now on. This larger role given to the European Parliament should lead to more open decision-making even for the external dimension of immigration and asylum policy, for the so called Global Approach to Migration. The LIBE Committee and the plenary assembly of the EP will not only be entitled to give a simple opinion on readmission agreements for instance, but will have from now on to examine them in order to decide whether to approve them or not (Articles 79 and 218-6-a) TFEU). The European Parliament thus detains a veto power concerning the conclusion of such agreements, which was not used for the readmission agreement between EU and Pakistan signed on 26 October 2009. It is noticeable that Article 16 of this agreement establishes that the mixed readmission committee, which undertakes to “control the enforcement of the agreement and to decide the implementation modalities necessary to its uniform execution”, is composed of representatives of Pakistan and of the Union. The EU representatives come from the Commission and are assisted by Member States experts; but there is no observer coming from the European Parliament. Although the Treaty of Lisbon surely asserts the promotion of an integrative dynamic for the immigration and asylum policy, a national prism persists. Raepenbusch, Sean van (2007), “La réforme institutionnelle du traité de Lisbonne: l’émergence juridique de l’Union européenne”, in Cahiers de droit européen, 43 (5-6), pp. 573-621; Chaltiel, Florence & Angel, Benoît (2008), Le traité de Lisbonne, avancées et limites, Bruxelles: Bruylant. 14
National security will remain the sole responsibility of each Member State. National parliaments will be given a greater role in monitoring the respect of the subsidiarity principle in relation to justice and home affairs matters. Furthermore, transitional provisions, special legislative procedures, and an ‘emergency brake’ mechanism reflect the persistence of an unbalanced decision making process in immigration and asylum matters.15 The Protocol on Transitional Provisions delays the improvements above mentioned, laying down rules that deal with the treatment of pre-existing Third Pillar acts. These will not have direct effect until they are repealed, annulled or amended in accordance with the Treaty of Lisbon (Protocol Article 9). For a five year period after the entering into force of the Treaty of Lisbon the Commission will not be able to bring enforcement actions against Member States for failure to fulfil their obligations (Article 10), and the Court of Justice will continue to exercise its only limited jurisdiction as it was provided for under the old Article 35 TEU. Moreover, there is particular concern about legislative proposals which have already been approved by the Council, the formal adoption of which has been delayed because of several parliamentary amendments. The Commission has tried to allay MEPs’ concerns, and has offered to implement an informal co-decision procedure even before the end of the five year period, concerning the future shape of committee on internal security COSI and concerning the implementation of the Stockholm Programme. Nevertheless, some AFSJ matters remain subject to special legislative procedures. The Council will act unanimously after consulting the European Parliament, on measures concerning the facilitation of the free movement of Union citizens i.e. passports and ID cards (Article 77-3 TFEU), concerning family law with cross-border implications (Article 81-3 TFEU), and concerning operational cooperation between national law enforcement services (Article 87-3 TFEU). Moreover, the Council will act unanimously with the consent of the European Parliament, for instance in order to establish a European Public Prosecutor’s Office (Article 86-1 TFEU). What is more, an ‘emergency brake’ mechanism has been introduced in two specific areas that would be governed by ordinary legislative procedure: minimum rules in procedural criminal law (Article 82-3 TFEU) and the definition of criminal offences (Article 83-3 TFUE). Broadly speaking, if the Council cannot agree on a measure in such areas, the legislative proposal can be referred to the European Council. If this happens, the ordinary legislative process is suspended and the Council has four months to find a consensus. If that fails, nine or more Member States could go ahead, by simply notifying this decision. This simplified enhanced cooperation procedure (the rest of the Council would not have to approve it) can be seen as an opportunity to move ahead through a pioneer group. However, this must also be seen as a danger, because it could increase the EU’s legal and political fragmentation: the Prüm Treaty (which was signed by seven Member States which agreed to strengthen police cooperation outside the EU framework) illustrates the possible ambiguities in such an avant-garde approach.16 This strategy necessarily creates disparities, which hardly nourish solidarity between the States. The deficiencies of the burden-sharing system for the reception of asylum seekers and illegal migrants are particularly enlightening. Leron, Nicolas (2010), “Le traité de Lisbonne: entre complication et simplification juridique et institutionnelle de l’Union”, Questions internationales, 45, pp. 28-34; Kaczyński, Piotr & Broin, Peadar ó (2010), The Treaty of Lisbon: A Second Look at the Institutional Innovations, CEPS Papers. 16 Balzacq, Thierry & Bigo, Didier & Carrera, Sergio & Guild, Elspeth, “The Treaty of Prüm and EC Treaty: Two Competing Models for EU Internal Security”, in Balzacq, Thierry & Carrera, Sergio (eds) (2006), Security Versus Freedom? A Challenge for Europe's Future, Aldershot: Hampshire, Burlington: Ashgate, pp. 115-137; Ziller, Jacques (2006), Le traité de Prüm: Une vraie-fausse coopération renforcée dans l’Espace de sécurité de liberté et de justice, EUI Working Paper Law, 2006/32, http://cadmus.eui.eu/bitstream/handle/1814/6401/LAW-2006-32.pdf?sequence=1 15
1.2 A deficient burden-sharing of the reception responsibilities According to Article 80 TFEU, the European immigration and asylum policy “[…] shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.” The Member States (essentially the Mediterranean ones, such as Spain, Italy, Malta, Cyprus, and Greece, that are forming the external borders of the EU) have to support important costs and charges receiving asylum seekers and migrants (accommodation, translation, application assessment, legal aid, schooling of minors, healthcare, custody, travel). And these burdens are increasing as the influx of asylum seekers and migrants are increasing.17 Therefore, the question must be asked of the funding of such costs and charges by the other Member States, of the solidarity between the EU Member States. Some are shouldering a considerable and disproportionate load: i.e. Malta is spending a GDP share more than a thousand times larger than Portugal for carrying such a burden. Cyprus and Greece are pressured too. The Southern Member States are increasingly facing the weight of massive migrant flows, because of their demography and geography. Their own population is reduced and cannot support either financially or socially the presence of thousands of migrants. And their meridian and oriental situation makes them often responsible for hosting the migrants and considering their asylum applications, the Regulation Dublin II generating not a burden-sharing but a burden-shifting.18 The European Parliament has studied different mechanisms that can contribute to a relatively fair burden-sharing for the reception of asylum seekers and migrants. 19 Harmonisation of national standards of reception and centralisation of functions within the European Asylum Support Office EASO appears to be a form of sharing responsibilities which can avoid the phenomenon of asylum shopping, even though the distribution of financial responsibilities would be more uneven.20 A pecuniary compensation is another device that could reduce some inequalities in the distribution of migration and asylum costs; nevertheless it would require a substantial expansion of the European Refugee Fund (ERF).21 And there is a voluntary physical relocation system of asylum seekers and migrants. However, past efforts to share Europe’s responsibility and burden for refugee protection and migrant reception have been ineffective. 22 As far as it draws on non-binding measures, had a reduced impact on costs and pressures Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in Receiving Martin, Susan & Schoenholtz, Andrew & Fischer, David, “The Impact of Asylum on Receiving Countries”, in Borjas, George J. & Crisp, Jeff (2005), Poverty, International Migration and Asylum, New York: Palgrave Macmillan. 18 Maiani, Francesco & Vevstad, Vigdis (2009), Reflection note on the evaluation of the Dublin system and on the Dublin III proposal, European Parliament (DG IPOL, Citizens Rights and Constitutional Affairs), PE 410.690, March 2009; ECRE (2008), Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered, 31 March 2008, http://www.ecre.org/resources/policy_papers/1058; UNHCR (2009), The challenges of mixed migration, access to protection and responsibility-sharing in the EU, A UNHCR non-paper, 16 June 2009. 19 European Parliament (2010), Directorate General for Internal Policies – Policy Department C: Citizens’ Rights and Constitutional Affairs - Civil Liberties, Justice and Home Affairs, What system of burden-sharing between Member States for the reception of asylum seekers?, What system of burden-sharing between Member States for the reception of asylum seekers?, PE 419.620, 22 January 2010. 20 European Commission (2009), Commission staff working document accompanying document to the Proposal for a Regulation of the European Parliament and of the Council establishing an European Asylum Support Office, Impact Assessment, SEC(2009) 153, 18 February 2009. 21 European Union, Decision No 573/2007/EC of the European Parliament and the Council of 23 May 2007 establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration flows’ and repelling Council Directive 2004/904/EC. 22 Thielemann, Eiko (2003), “Between Interests and Norms: Explaining Patterns of Responsibility-sharing in Europe”, Journal of Refugee Studies, 16 (3), pp. 253-73. 17
such Persons and Bearing the Consequences Thereof. The principle of double voluntarism is proclaimed, so that the agreement of both the recipient Member State and the individuals concerned is required before asylum seekers can be moved from one country to another. The Finnish and German proposals for EU responsibility-sharing mechanisms have failed, the Member States being unable to reach any agreement on them. Furthermore, the framework programme on solidarity and management of migration flows proved deceptive.23 For the period 2007-2013, a total budget of about €4 billion has been granted to feed four funds. Two of them were created by Decisions 574/2007/EC and 575/2007/EC of 23 May 2007: the External Borders Fund, which gives some support to the Member States that endure a lasting and heavy financial burden arising from the implementation of common standards on control and surveillance of external borders and visa policy and the Return Fund, which sustains the implementation of integrated return management of the migrants. A third fund, the European Fund for the Integration of Third-country nationals, established by Decision 435/2007/EC, is intended to finance actions supporting the integration process of newly arrived third-country nationals in Member States. The European refugee Fund is the fourth one: Decision 2000/596/EC has been adopted to promote good practices in the field of asylum, and to support Member States facing particular pressures resulting from sudden arrivals of large numbers of persons who may be in need of international protection. The ERF is thus not primarily a mechanism aiming to reduce disparities between Member States in asylum burdens. However, a responsibility-sharing element can be noticed. The €628 million granted for the period 2008-2013 is indeed divided into €62 million for Union actions, and “€566 million distributed among the Member States on the basis of the number of asylum seekers and integrating persons benefiting from international protection”. 24 Notwithstanding this, the way the funds are distributed, taking into account absolute asylum applications, does not guarantee an efficient mechanism of fair burden-sharing. The Fund targets not only the asylum seekers but all migrants. The 2008 grants were calculated on the basis of 81 000 people: 65 000 asylum applicants that have received the international protection status, 11 000 migrants that have obtained a residence permit for medical and humanitarian reasons, and 4 886 reinstalled refugees. What about the 609 000 migrants who have not been admitted with the benefit of such status, but have been received and hosted by a Member State? What is more, the ERF budget for the 5 years period is insufficient: it represents less than 14 per cent of the total asylum costs that have been registered in the EU27 in 2007. As the Commission declared, “the ERF clearly lacks the resources needed to effectively finance the real efforts made by Member States to implement refugee policy”. 25 Yet, a system of physical relocation of asylum seekers and migrants has been added. In 2006 and 2007, Germany, The Netherlands, Ireland and Lithuania proposed to receive some families that had arrived in Malta. The idea of an internal reallocation of beneficiaries of international protection seems to have been inspiring: it appears in Commission Decision 573/2007/EC of 29 November 2007; in the Communication on the further Justice and Home affairs agenda for 2010-2014 adopted in June 200926; and in the Conclusions of the European Council of June 2009. The first Pilot project on the reallocation of refugees located in Malta was initiated in 2008 and concerned 95 people. A second one was launched in May 2009 after Jacques Barreau, Member of the Commission responsible for Justice and Home affairs, went to Malta: this COM (2005) 123, 6 April 2005. http://ec.europa.eu/home-affairs/funding/refugee/funding_refugee_en.htm 25 European Commission (2009), Commission staff working document accompanying document to the Proposal for a Regulation of the European Parliament and of the Council establishing an European Asylum Support Office, Impact Assessment, SEC(2009) 153, Brussels, 18 February 2009. 26 COM(2009) 262, 10 June 2009. 23 24
ongoing project EUREMA (EU Relocation Malta) involves some 10 Member States, and is so limited that it cannot assure real solidarity in the EU.27 And we must not forget that such lack of solidarity between States induces a lack of equitable treatment of the migrants: the spending per asylum seeker is less than €1 000 in Hungary, the Czech Republic, and Bulgaria, and over €75 000 in Ireland, Germany, and The Netherlands.28 Meanwhile the Treaty of Lisbon recognises a binding effect to the EU Charter of Fundamental Rights, the nationalist tendencies of the Member States give the priority to security concerns, so much so that the migrants’ rights seem to be somehow disregarded. 2. Human dignity versus security concerns: is there any solidarity from the EU? As the Article 2 TEU stipulates: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. Such an assertion is declined by the Commission in its Communication Delivering an area of freedom, security and justice for Europe’s citizens – Action plan implementing the Stockholm Programme.29 There are some declarations of intent to be quoted: “A European area of freedom, security and justice must be an area where all people, including third country nationals, benefit from the effective respect of the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union” (p.2); “The protection of the rights enshrined in the Charter of Fundamental Rights, which should become the compass for all EU law and policies, needs to be given full effect and its rights made tangible and effective” (p.3). The Commission goes on asserting that it “will apply a “Zero Tolerance Policy” as regards violations of the Charter”, “will reinforce its mechanisms to ensure compliance with the Charter and report on it to the European Parliament and Council” (p.3).Nevertheless, what can such exhortations really mean as far as the immigration and asylum policies of the Union and its Member States are designed to respond to security concerns? The Commission gives an answer when announcing that “An Internal Security Strategy, based upon the full respect of fundamental rights and on solidarity between Member States, will be implemented with care and firm resolve to face the growing cross-border challenges” (p.5). Yet the objectives aimed at are worrying: they consider as common threats not only growing cross border crime, organised crime, and terrorism, but also the problems that are linked to manmade and natural disasters and the migrations that could be thus generated.30 Consequently, the foreigner tends to be looked at not as the one that needs our hospitality, but as the one that causes our hostility. That’s why the European immigration and asylum policy is essentially
COM(2010) 214, opus cit., p.8; Thielemann, Eiko (2008), “The Future of the Common European Asylum System: In Need of a More Comprehensive Responsibility-sharing Approach”, European Policy Analysis, 1-2008; Thielemann, Eiko, “Towards A Common European Asylum Policy: Forced Migration, Collective Security and Burden-Sharing”, in: Freeman, Gary & Givens, Terry (eds.) (2009), Immigration after 9/11, New York: Palgrave, pp. 167-186. 28 PE 419.620, opus cit., p.85; Thielemann, Eiko (2004), “Why European Policy Harmonization Undermines Refugee Burden-Sharing”, European Journal of Migration and Law, 6 (1), pp. 43-61. 29 COM (2010) 171, 20 April 2010. 30 Weber, Serge (2009), ‟D'un rideau de fer à l'autre: Schengen et la discrimination dans l'accès à la mobilité migratoire”, Géocarrefour, 84 (3). 27
conceived to promote border control: in order to limit entries, in order to promote returns. 31 Reception is made increasingly constrained while removal is increasingly effective.
2.1 A constrained conception of the migrants’ reception As the Treaty of Lisbon consolidates the scope of international and European legal instruments of rights protection, we can but wonder whether the measures that will be adopted on immigration and asylum issues will comply with such norms, as interpreted by the Court of Justice32 and the European Court of Human Rights. Will the expected pre-eminence of fundamental rights, and thus the expected pre-eminence of migrants’ rights protection, be a reality or an illusion? The Commission affirms that common rules to effectively manage family reunification are essential to maximise the positive effects of legal immigration for the benefit of all stakeholders and to strengthen the Union’s competitiveness. Nevertheless, the guarantee of migrants’ rights is immediately limited by the emphasis on the requirement of integration into the societies in which they live.33 Although Directive 2003/86/EC establishes the right to family reunification, Directive 2004/38/EC recognises the right of EU citizens and their family members to move and reside freely within the territory of the EU,34 and the European Court of Justice considers the right to family reunification as a fundamental one in the Metock case,35 this right does not seem easy to rely on. Indeed, the European pact on immigration and asylum, adopted unanimously by the European Council on 16 October 2008, under the French presidency, pleads for more effectively organised family immigration. In other words, the latter must comply with the acceptance capabilities of Member States and the integration capabilities of families. That means respect and knowledge of the host country (laws, identity, language, culture) and access to employment. The possibilities of third-country nationals to enter and reside in the Union are then reduced, as the right to family reunification is ignored. That is why must be underlined the judgment the ECJ handled on 8 March 2011 in the Zambrano case36, even though it was damned by the sentence stated in the McCarthy case.37 Asserting that a European citizen cannot be deprived of “the substance of the rights” attached to such a status and must be assured of “the genuine enjoyment of these rights”, the Court
Thielemann, Eiko, “The Effectiveness of Governments’ Attempts to Control Unwanted Migration”, in Parsons, Craig. & Smeeding, Timothy (eds) (2006), Immigration and the Transformation of Europe, Cambridge: Cambridge University Press, pp. 442-472 32 Picheral, Caroline (2011), “L’œuvre de la Cour de justice dans la politique européenne d’asile et d'immigration”, Revue du Marche Commun et de l’Union européenne, 545, février 2011. 33 Marzo, Claire (2010), “Aux frontières de l’Europe : comparaison de la situation des résidents, ressortissants de différents États tiers, à celle des citoyens de l’Union européenne”, Revue de l'Union européenne, 538, mai 2010. 34 Candela Soriano, Mercedes & Chenvière, Cédric (2005), “Droit au regroupement familial et droit au mariage du citoyen de l’UE et des membres de sa famille à la lumière de la directive 2004/38/CE”, Revue trimestrielle des droits de l’homme, 64/2005, pp. 923-953. 35 ECJ, Blaise Baheten Metock v. Minister for Justice, Equality and Law Reform, C-127/08, 25 July 2008; Hammamoun, Saïd & Neuwahl, Nanette (2009), “Le droit de séjour du conjoint non communautaire d’un citoyen de l’Union dans le cadre de la directive 2004/38 (CJCE, affaire Metock, C-127/08)”, Revue trimestrielle de droit européen, 45 (1), pp. 91-104; Dittert, Daniel (2009), “CJCE, 25 juillet 2008, Metock e.a”, Revue des affaires européennes, 4, 2007-2008, pp. 777-783. 36 ECJ, Ruiz Zambrano v Office national de l'emploi (ONEm), C-34/09, 8 March 2011. 37 ECJ, Shirley McCarthy v. Secretary of State for the Home Department, C-434/09, 8 May 2011. 31
considers that the illegally staying TCNs parents of a child who is an EU citizen have to be allowed to live and work in the considered Member State.38 Regarding the right of asylum, it is possible to make a similar report, as it appears sometimes quite difficult to benefit from such a right in the EU. Directive 2004/83/EC provides minimum standards for the qualification and status of third-country nationals or stateless persons as refugees. The objectives are to ensure that all Member States apply common criteria for identifying persons genuinely in need of international protection, and that a minimum level of benefits is available for these persons in all Member States. Nonetheless, the EU conception of the right of asylum remains classical and traditional: the refugee is defined by the Article 1 A (2) of the 1951 Geneva Convention as a person “[…] owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” A subsidiary protection is offered to complete the international refugee protection regime, which does not cover all aspects and situations faced by asylum seekers, such as threats of torture, inhumane and degrading treatments. However, no protection can be granted to migrants that would put forward some social, economic, environmental, or climate-related reasons.39 Furthermore, the safe country of origin concept enounced in Directive 2005/85/EC on minimum standards on asylum procedures appears to be a means of excluding certain categories of asylum applicants from access to refugee status procedures, no matter whether their fundamental rights are respected or not.40 Thus it can be understood why the Court of Justice denounced such a drift. According to the interpretation of this Directive the Court provided in the Elgafaji case,41 the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that the applicant adduces evidence that he or she is specifically targeted by reason of factors particular to his or her personal situation. The Court adds that the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict reaches such a high level that there are substantial grounds for believing that a civilian, returned to the relevant country would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a serious and individual threat. This case highlights how difficult it is to harmonise the procedures for granting refugee status, to impose on some Member States the unsafe nature of some third countries. For example, the French authorities have decided that Bosnia-Herzegovina and Ukraine are safe countries. In reality, the EU and its Member States tend to promote some procedures that facilitate and accelerate the migrants’ removal. Besides, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals sets out provisions on the detention of third-country nationals pending removal, including for instance the maximum length of time during which a person can be detained (18 months).42 In its first interpretation of this norm,43 the http://combatsdroitshomme.blog.lemonde.fr/2011/03/11/reconnaissance-dun-droit-au-sejour-autonome-aubenefice-de-parents-etrangers-denfants-citoyens-de-lunion-europeenne-cjue-8-mars-2011-zambrano/ 39 Cournil Christel (2005), Le statut interne de l’étranger et les normes supranationales, Paris: L’Harmattan, pp. 257-260. 40 UN-HCR (1991), Background Note on the Safe Country Concept and Refugee Status, 26 July 1991, EC/SCP/68, http://www.unhcr.org/refworld/docid/3ae68ccec.html; ECRE (2005), The application of the safe country of origin concept in Europe: an overview, http://www.ecre.org/files/elenasco.pdf. 41 ECJ, Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van Justitie, C-465/07, 17 February 2009. 42 Parrot, Karine & Santulli, Carlo (2009), “La directive retour: l’Union européenne contre les étrangers”, Revue Critique de Droit International Privé, 98 (2), janvier 2009. 38
Court of Justice considers the detained migrant must be immediately released, when a reasonable prospect of removal does not exist anymore, or when the laid down maximum period of detention has expired. If the detention has to respect minimum standards, some Member States do not guarantee to migrants and asylum seekers conditions that are in conformity with their legitimate pretension to dignity. Greece for instance has been condemned several times by the European Court of Human Rights, because of the structural deficiencies of its asylum system: insufficient information about the procedures to be followed, lack of a reliable system of communication between authorities and asylum seekers, lack of training of the staff responsible for conducting interviews with them, shortage of interpreters, lack of legal aid effectively depriving asylum seekers of legal counsel, lack of access to healthcare and accommodation, detention of asylum seekers, and so forth.44 Hence can there be any respect of migrants’ fundamental rights when some Member States remove migrants to Greece, applying the Dublin II Regulation?45 And the European Court of Human Rights recently answered such a question, in the judgment the Grand Chamber handled down on 21 January 2011 in the M.S.S. v. Belgium and Greece case.46 Greece has been condemned, as the Court considered the conditions of living and of detention the applicant experienced there were incompatible with Article 3 of the Convention, and the deficiencies of the Greek judicial system the applicant suffered from were contrary to Article 13 taken in conjunction with Article 3. Nevertheless, what must be underlined in such a judgment is the decision of the Court to sentence Belgium for removing the applicant to Greece and exposing him so to the insufficiencies of its national asylum procedure. Indeed, the Court founded that the Belgian authorities, by transferring the applicant to Greece according to Dublin II Regulation, knowingly exposed him to conditions that amounted to degrading treatment and thus gave rise to a violation of Article 3 of the Convention. The solution has been shared by the ECJ in the N.S. case.47 Insofar an obligation is put on the EU Member States. According to the Court, the national authorities cannot assume that an applicant they want to transfer to another Member State will be treated in conformity with the Convention, have to verify that the Member State where they want to transfer the applicant apply its own asylum legislation in conformity with the Convention standards. Thus when the conditions of living and of detention of the asylum seekers are considered as inhumane and degrading treatments, the transfer in application of the Dublin II Regulation has to not to be implemented. Yet, the administrative detention of migrants and
ECJ, Kadzoev, C-357/09, 30 November 2009; Basilien-Gainche, Marie-Laure (2010), ‟De la rétention des étrangers et de ses limites dans le temps - Réflexions sur la première interprétation par la CJCE de la directive retour”, Revue du marché commun et de l'Union européenne, 537, avril 2010, pp. 237-243. 44 ECtHR, S.D. v. Greece, n° 53541/07, 11 June 2009; ECtHR, Tabesh C. Greece, n° 8256/07, 26 November 2009; European Parliament (2007), Report from the LIBE Committee Delegation on the visit to Greece, PE 392.010v03-00, 17 July 2007; Council of Europe Commissioner for Human Rights (2009), Report by Thomas Hammarberg following his visit to Greece 8-10 December 2008, CommDH(2009)6, 4 February 2009; European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment CPT (2009), Report to the Government of Greece on the visit to Greece carried out by the from 23 to 29 September 2008, CPT/Inf (2009) 21, 30 June 2009. 45 Slama, Serge (2010), “Réadmissions vers la Grèce: le droit européen de l’asile en question”, available on the website of the Albert Cohen Foundation e-colloque Les grands enjeux de l’Etat de droit, http://ecolloque.fondationmemoirealbertcohen.org/index.php?page=readmissionsverslagrece; Amnesty International, The Dublin II trap: Transfers of asylum-seekers to Greece, EUR 25/001/2010, 22 March 2010; Amnesty International, Greece: Irregular migrants and asylum-seekers routinely detained in substandard conditions, EUR 25/002/2010, 26 July 2010. 46 ECtHR, M.S.S. v. Belgium and Greece, n° 30696/09, 21 January 2011. 47 ECJ, GC, N.S. contre Secretary of State for the Home Department & M.E. et alii contre Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 & C-493/10, 21 December 2011. 43
asylum seekers seems to be often really problematic.48 Some detention centres are established on old boats (Rotterdam, The Netherlands), disused warehouses (Samos, Greece), old containers (Melsbroek, Belgium), ancient prisons (Bruges, Belgium), even internment camps used during World War II (Rivesaltes, France). And the terms the Member States use to name such centres are revealing: centres of reception, retention, detention, removal, return, internment. More, twelve of the Polish ones are called ‘centres of deportation’. And such centres are numerous along the southern and oriental European borders, as well as in some neighbouring countries.49 Belarus, Moldavia, Ukraine, Turkey, and Morocco are involved in a European immigration and asylum policy which is somehow externalised.
2.2 A controversial externalisation of the European policy Removing from the European territory the illegally staying third-country nationals, preventing the undesirable migrants from entering the Member States’ territory, are the obvious objectives of the nationalist trend the European immigration and asylum policy seems to endorse. Such a policy appears to be clearly more conservative, essentially conceived through the reinforcement of border control. No matter how large the margin of appreciation the Member States have: no EU norms impose the removal of illegally staying third-country nationals, as the Court of Justice underlined it in the Garcia y Cabrera case.50 However, the EU rationalises return and repatriation procedures by admitting the mutual recognition of decisions on the expulsion of third-country nationals (Directive 2001/40/EC), providing for the assistance in cases of transit for the purposes of removal by air (Directive 2003/110) and organising joint flights for removals from the territory of two or more Member States of third-country nationals (Decision 2004/573/EC). Therefore, the focus is on the reinforcement of border controls. This can be noticed by examining FRONTEX, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, established by Council Regulation 2007/2004/EC.51 The annual budget which the agency was granted registered a rise of €30 million in 2008; the proposal for a Regulation COD/2010/0039 amending Regulation 2007/2004/EC is worrying because of its troubling silences, particularly on the guarantees offered to protect the personal data of third-country nationals.52 As the European Data Protection Supervisor Peter Hustinx denounced it on 17 May 2010, nothing has been conceived neither to define an independent authority able to control the use of such personal data, nor to organise the possible jurisdictional appeals for the people concerned.53 European Parliament (2007), Report of the LIBE Committee on The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states, 2007; Kobelinsky, Carolina & Makaremi, Chowra (eds) (2009), Enfermés dehors Enquêtes sur le confinement des étrangers, Paris: Editions Du Croquant. 49 Clochard, Olivier (ed) 2009, Atlas des migrants en Europe. Géographie critique des politiques migratoires, Paris: Armand Colin. 50 ECJ, García et Cabrera v. Delegado del Gobierno en la Región de Murcia, C-261/08 & C-348/08, 22 October 2009. 51 Carrera, Sergio (2007), The EU border management strategy: FRONTEX and the challenges of irregular in the canary islands, CEPS Working Document n°261, March 2007; Neal, Andrew William (2009), “Securitization and Risk at the EU Border: The Origins of FRONTEX”, 47 (2), Journal of Common Market Studies, March 2009, pp333-356; Leonard, Sarah (2009), “The Creation of FRONTEX and the Politics of Institutionalisation in the EU External Borders Policy”, Journal of Contemporary European Research, 5 (3). 52 European Commission (2010), Proposal for a Regulation of the European Parliament and the Council amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), COM/2010/0061 final, 24 February 2010. 53http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010 /10-05-17_FRONTEX_EN.pdf 48
Silence also on the Agency’s responsibility.54 FRONTEX would evaluate, approve, coordinate proposals for joint operations and pilot projects the Member States will propose; FRONTEX would conceive the organisational aspects of such operations and projects within operation plans. Nevertheless, some questions must be asked. What are the procedural mechanisms and the substantial provisions that will ensure that such an agency will respect in so doing the migrants’ fundamental rights? Yet the proposal does not let us know if the European Parliament will be able to control the plans, operations, and projects the agency will design and lead. The proposal does not specify whom the EU or the Member States will be accountable to for the violations of migrants’ rights, the question being especially complex if such infringements are carried out in international waters or in third-country territorial waters. Nevertheless, one strategy is more efficient than removal: externalising55. The idea consists of dissuading third-country nationals to migrate, in redirecting migrants towards third countries.56 That was precisely the Joint Operation HERA goal: it was asked in 2008 to tackle illegal migration flows coming from West Africa heading to the Canary Islands. The 4 373 persons intercepted at sea during this operation have thus either been convinced to turn back to their country of origin, or have been escorted back to the closest shores (Senegal or Mauritania).57 So they were removed before reaching European soil. With the same perspective, the migration provisions have appeared in the framework of the Barcelona process launched in 1995. They are included in trade and cooperation agreements with third countries, thus making migration measures a condition of development funding. Afterwards, readmission agreements have emerged, imposing to the parties (obviously the only third countries) to readmit their own nationals, third-country nationals, even stateless persons. During the 1999 Tampere European Council, the Member States call on to strengthen such an integrated approach to removal procedures. In 2002, the Seville European Council: “[…] urges that any future cooperation, association or equivalent agreement... with any country should include a clause on joint management of migration flows and on compulsory readmission in the event of illegal immigration.” This is reaffirmed by the Hague Programme launched by the European Council of November 2004: the so-called “external dimension of asylum and immigration” has become its main focus. And the Stockholm programme reinforced such a Global Approach to Migration that must “be developed in partnership and dialogue with countries and regions of origin.” Yet the readmission policy raises concerns with regards to the respect of migrants’ rights.58 No evaluation of the already 11 enforced Pollack, Johannes & Slominski, Peter (2009), “Experimentalist but not Accountable Governance? The Role of Frontex in Managing the EU's External Borders”, West European Politics, 32 (5), 5 September 2009, pp. 904-924. 55 Wolff, Sarah (2007), ‟La dimension méditerranéenne de la politique Justice et Affaires intérieures”, Cultures & Conflits, 66, pp.77-99; Suez, Denis (2008), L’Union européenne et l’immigration clandestine. De la sécurité intérieure à la construction de la communauté politique, Bruxelles: Ed. Université de Bruxelles; Beaudu, Gérard (2009), “L’externalisation dans le domaine des visas Schengen”, Cultures & Conflits, 74, pp.111-127; Blanchard, Emmanuel & Clochard, Olivier & Rodier, Claire (2010), Sur le front des frontières, Plein droit, n°87, décembre 2010. 56 Gammeltoft-Hansen, Thomas, “The Refugee, the Sovereign and the Sea: EU Interdiction Policies in the Mediterranea”, in Adler-Nissen, Rebecca & Gammeltoft-Hansen, Thomas (eds) (2008), Sovereignty Games: Instrumentalising Sovereignty in Europe and Beyond, Houndmills: Palgrave Macmillan, pp. 171-196; UNHCR (2009), Refugee Protection and international migration: A review of UNHCR’s role in the Canary Islands, Spain, April 2009; Baldaccini, Anneliese, “Extraterritorial immigration control – legal challenges: the Role of Frontex in Operations at sea”, in Ryan Bernard & Mitsilegas Valsamis (eds) (2010), Extraterritorial immigration control – legal challenges, Nijhoff Publishers. 57 FRONTEX has conducted many operations at sea in order to reduce the migrants’ flows coming from Africa. Such operations were realized: in the Atlantic Ocean at the borders of Mauritania, Senegal and Cape Verde (Hera I, II et III); in the Mediterranean sea near Sicilia, Malta and Libya ((Nautilus that has been renamed Cronos since 2010); between North Africa, Spain and Italy (Minerva, Indalo, Hermes);between Greece, Turkey, Albania and Bulgaria (Poséidon). http://www.frontex.europa.eu/http://www.frontex.europa.eu/newsroom/press_pack/ 58 Bouteillet-Paquet, Daphné (2003), “Passing the Buck: a critical analysis of the readmission policy implemented by the European Union and its Member States”, European Journal of Migration and Law, 3, pp.359-377; Roig, Annabelle & 54
readmission agreements has been conducted so far. As the Parliamentary Assembly of the Council of Europe PACE declared, an evaluation should have been conducted regarding human rights issues, before the conclusion of new readmission agreements with third countries. And the working document of the Committee on Migration, Refugees and Population of the PACE insist: the Members States ought to “[…] conclude readmission agreements only with countries that comply with relevant human rights standards and with the 1951 Geneva Convention, that have functioning asylum systems in place and that protect their citizens’ right to free movement, neither criminalising unauthorised entry into, nor departure from, the country in question.” What should we thus think of the readmission agreement EU-Pakistan? Supposedly aimed at sending back Afghan nationals to Pakistan, this agreement does not offer any real measure either to guarantee that the readmitted persons will be protected, or to ensure that their rights will be respected. The only provision in relation to such issues stipulates that the agreement shall be enforced in compliance with international conventions, with the High contracting parties being the only ones accountable for it. This is surely an all too vague statement, as Pakistan did not sign the most important international legal instruments about human rights, and as the country’s situation is far from safe: bomb attacks, tribal fights, minorities persecution, violence against women, detention of minors from the age of seven, homosexuality punished, death penalty, polices’ abuses toward Afghan people, and so forth. 3. Conclusion National concerns seem to prevail over European ones and security purposes over the protection of dignity.59 If the Member States appear to share some common and conservative objectives in drafting the European immigration and asylum policy, they still remain reluctant with regards to any really integrative approach in such matters. Not only do they wish to retain control over such a policy, but they also have vastly different needs and perspectives. The Blue Card proposal’s evolution confirms this: the Member States overwhelmingly favour a complementary system which does not replace their own national policies for attracting the brightest and the best. Torn between new opportunities and renewed constraints, the European immigration and asylum policy in particular, and the Area of Freedom, Security and Justice in general, are still and always giants with feet of clay. Why? The Treaty of Lisbon maintains numerous exceptions and loopholes, and furthermore creates new ones. The European pact on immigration and asylum and the Stockholm programme reveal to be conservative, shiftless. In particular, the European immigration and asylum policy sends a really negative message to EU residents and third countries, looking at immigration as a regrettable phenomenon that cannot be stemmed, not as a potentially profitable reality for our ageing European societies. And as the Commission noted in its communication on the establishment of a joint EU resettlement programme, “The current relatively low level of involvement of the EU in the resettlement of refugees impacts negatively on the ambition of the EU to play a prominent role in global humanitarian affairs and hence on the influence of the EU in international for a.”60
Huddelston, Thomas (2007), “EC Readmission Agreements: A Re-evaluation of the Political Impasse”, European Journal of Migration and Law, 9 (3), pp. 362-387; Coleman, Nils (2009), European Readmission Policy - Third Country Interests and Refugee Rights, Leiden: Martinus Nijhoff. 59 Slama, Serge (2009), “Immigration et libertés”, Pouvoirs, 130, pp. 31-47. 60 COM (2009) 447, 2 September 2009, p. 5.