Steve Peers

The European Commission recently unveiled its immigration strategy. Pending the release of the final text, this analysis examines an earlier leaked version, highlighting potential discrepancies if the final strategy deviates significantly.

Content

The strategy is structured in three parts: immediate responses to the migrant fatality crisis, an immigration management agenda covering irregular immigration, border control, asylum, and legal migration, and lastly, some long-term goals.

Immediate action

The immediate action section largely expands on the strategy already outlined by EU leaders regarding Mediterranean migrant deaths. This response remains limited, focusing mainly on expanding EU interception efforts in the Mediterranean and dismantling smugglers’ vessels.

However, the Commission’s paper indicates greater ambition in two areas. Firstly, it aims to enhance the relocation of asylum-seekers among Member States, alleviating the burden on frontline states like Italy and Malta, typically responsible under the EU’s Dublin rules. To achieve this, the Commission plans to propose emergency response legislation by May’s end, based on Article 78(3) of the TFEU, which would distribute asylum-seekers arriving as part of a mass influx among Member States. These laws would be subject to a qualified majority vote in the Council, with only consultation of the European Parliament. Subsequently, the Commission intends to propose a permanent relocation system by the end of 2015 through the standard legislative process, involving the usual powers of the European Parliament.

Secondly, the Commission aims to advance resettlement, facilitating the entry of recognized refugees from third states into the EU. They plan to issue a Recommendation on resettlement, followed by a binding legislative proposal if necessary, and will provide additional EU funds to support resettlement.

Irregular immigration

The Commission aims to tackle the root causes of irregular migration by strategically allocating existing EU funds. However, there’s no clear commitment to increased spending. Next, it seeks to combat migrant smuggling with an Action Plan due by May’s end. Coinciding with this, an ongoing review of current EU legislation on migrant smuggling is underway, though not explicitly mentioned in the paper. Additionally, the Commission aims to strengthen the enforcement of the EU Directive on employing irregular migrants.

Furthermore, the Commission aims to address return issues, prioritizing countries of origin for readmission treaties with the EU. It plans to provide guidelines for implementing the EU Return Directive and empower Frontex, the EU Border Agency, to initiate expulsion missions. Legislation for the latter is contingent upon an evaluation to be finished by year’s end.

Border management

Commission proposals primarily encourage better implementation of current EU regulations. The sole concrete initiative is a commitment to reintroduce the EU’s ‘Smart Borders’ proposals, encompassing an entry-exit system for non-EU nationals, by early 2016. Notably, this was already part of the Commission’s plan.

Asylum

Partially in effect, the second phase of EU legislation on asylum includes the ‘qualification Directive,’ defining refugee and subsidiary protection statuses, applicable from late 2013. The ‘Dublin III’ rules on asylum-seeker responsibility became effective from early 2014. The remaining revised regulations regarding the ‘Eurodac’ system, reception of asylum-seekers, and asylum procedures are applicable from July 2015.

The Commission pledges to concentrate on implementing these laws through guidance documents and prioritize infringement actions against Member States neglecting proper application. Additionally, they plan to review the Dublin system in 2016, potentially suggesting proposals to expedite processing cases from presumed ‘safe countries of origin.’

Legal migration

The Commission supports a legal migration policy aligned with demographic needs to expand the EU’s working-age population. They plan a ‘fitness check’ of existing legislation and encourage a swift agreement on their proposal concerning students and researchers, nearing finalization by the Council and EP. By May’s end, they also intend to review the ‘Blue Card’ legislation for highly-skilled migrant admission, specifically addressing investor attraction and enhancing mobility between Member States.

Furthermore, the Commission suggests a new initiative: establishing rules for service provision by non-EU citizens. Building on provisions within EU free-trade agreements, the Commission aims for standardized rules applicable to all non-EU citizens. Importantly, these rules should apply, at least partially, to all Member States, as they pertain to international trade, an exclusive EU competence exempt from opt-outs. While this exclusive competence arguably applies to market access, distinguishing it from related immigration rules subject to opt-outs, clarification may be necessary.

Finally, the Commission addresses visa policy, specifically their proposal to modify the EU visa code and review the list of countries requiring visas for their nationals. Additionally, they propose modestly increasing financial assistance to third countries for migration management.

Long-term objectives

Without specifying a timeline, the Commission outlines long-term goals in three areas. For asylum, they propose a common code of EU asylum law, mutual recognition of asylum decisions, and a unified decision-making process. However, it remains unclear whether this involves the Commission or another EU body making decisions, or a common court reviewing asylum appeals, mirroring the EU’s planned patent court model.

Regarding border control, the Commission reiterates long-standing goals for a unified EU border guard, or at least a shared coastguard.

Lastly, for legal migration, the Commission suggests an EU-wide system for expressing interest, enabling individuals to apply for jobs across all Member States, rather than individual ones.

Comments

While the Treaties advocate a ‘common’ EU policy on immigration, asylum, and border control, the Commission’s proposed agenda doesn’t prioritize this objective. Instead of identifying measures to achieve this common goal, it incrementally builds upon the status quo, addressing specific issues.

Addressing the immediate migrant crisis, the strategy largely reiterates existing EU commitments, except for relocation and resettlement proposals. The relocation proposals, in particular, are likely to face political hurdles, given Member States’ historical resistance to binding rules in this area.

The resettlement proposals appear more feasible, starting with non-binding measures and additional EU funding to incentivize Member States. Only if this proves ineffective would the Commission propose binding rules, a less likely scenario. This approach is positive as it could reduce the number of at-risk migrants undertaking dangerous journeys to the EU. However, the proposed 20,000 annual resettlements by 2020 represent a small fraction of those making the journey (compared to over half a million asylum applications in the EU last year) and might not receive Member State approval.

Regarding smuggling legislation, while exempting clear humanitarian activities could be beneficial, legal changes alone won’t deter smugglers. Additionally, the EU’s plan to destroy migrant boats faces various legal, political, and logistical obstacles, including opposition from Libyan authorities – key partners for resolving the Libyan conflict.

The plan for returns legislation emphasizes enhancing existing rules, through more readmission treaties and removal operations. However, combined with the proposal to fast-track asylum assessments from alleged ‘safe countries of origin,’ there’s a risk of returning individuals to unsafe environments before properly evaluating their protection needs.

Concerning asylum, the focus lies on implementing current rules, potentially leading to greater harmonization among Member States, as second-phase asylum rules reduce legal discrepancies allowed under earlier regulations. Success depends on the Commission’s political will, considering their history of unfulfilled promises to enforce EU asylum law. The lack of detail on enhancing infringement proceedings raises concerns about the commitment’s sincerity, until concrete actions and transparent reporting are implemented.

Regarding legal migration, while admitting more highly-skilled migrants and service providers in areas of economic need, along with admitting tourists, researchers, and students, could benefit the EU economy, with some measures already in progress, the Commission’s commitment to enforcing existing EU legislation on legal migration remains weak. This is particularly concerning given the barriers faced by non-EU citizens in family reunification and the inadequate implementation of EU laws regarding long-term residents.

Finally, the Commission’s long-term plans, while interesting, echo previously rejected proposals. The failure to suggest early adoption of rules on transferring refugee protection between Member States is disappointing, especially since some refugees can already move between EU countries, with an existing Council of Europe treaty offering a potential template.

Overall, the Commission’s strategy primarily repackages existing EU commitments, ongoing negotiations, and existing measures. The need for plans to enforce existing laws highlights the Commission’s past failures. The effectiveness of issuing ‘guidance documents’ remains questionable and requires independent review. Promises regarding infringement proceedings hold little weight without concrete actions and transparent reporting. While planned legislation appears generally modest, aspects like fast-tracked asylum assessments and expulsions to countries of origin raise significant human rights concerns. The concluding long-term goals lack concrete pathways for implementation.

Ultimately, this strategy might result in incremental progress toward a common EU policy on borders, immigration, and asylum. However, it falls short of the transformative change possible with stronger political will from the Commission and Member States.

Barnard & Peers: chapter 26