Last September the Justice and Home Affairs Council reached a unanimous agreement on the content of the French Presidency pet project – the European Pact on Immigration and Asylum which was recently endorsed and officially adopted by the European Council. The European Pact on Immigration and Asylum is set to influence the shaping of the future EU common immigration and asylum policies. That means that Brussels will decide the UK immigration and asylum policies.
The UK has been loosing its power to control immigration. The UK is not part to the Schengen agreement and it has an opt out from Title IV of the TEC (visas, asylum, immigration, judicial cooperation in civil matters) nevertheless the Government has opted into several immigration and asylum measures and once a decision has been taken to opt into a particular EU measure there is no going back.
It should be recalled that the European Commission, the French Presidency and the European Council are united on Freedom, Security and Justice Policies. Last June, the European Commission adopted two Communications which provide the Commission’s perspective on future policy and legislation on immigration and asylum matters. The European Commission proposals match the content of the European pact on migration and asylum. Under new measures proposed by the Commission, the British Government will have even less power to decide on asylum and immigration matters. There is no veto power and measures are adopted through the co-decision procedure therefore the UK has a reduced influence over the development of a common asylum policy.
The EU common immigration and asylum policy will be shaped by a spirit of solidarity between Member States. The pact sets out policy principles on legal and illegal migration, asylum policy, border control and co-operation with developing countries. Whereas the Pact is not legally binding it is definitely more than a political commitment as it will lead to concrete proposals from the Commission. The Pact principles are already reflected in a series of measures which will have to be implemented at both EU and national level. In fact, the Pact reflects the policies included in the Hague Programme, the Conclusions of the European Council such as the Global Approach to Migration and several Commission Communications on asylum and immigration.
Furthermore, the Pact will be incorporated into the future work programme on justice and home affairs and transpose into concrete measures. The Programme which will follow on from The Hague programme in 2010 will be proposed by the Commission in May 2009. The Pact will, therefore, direct decision making and priorities on future work.
The European Council has committed to organise legal immigration to take account of the priorities, needs and reception capacities determined by each Member State, and to encourage integration. The European Council recalled that it is for each Member State to decide on the conditions of admission of legal migrants to its territory and, where necessary, to set their number. However, the Member States committed “to implement an immigration policy that is both managed, particularly with respect to all labour market needs, and concerted, given the impact it may have on other Member States.”
The EU leaders want to turn the EU more attractive for highly qualified workers hence the Blue card proposal will be the main focus under this heading. However, there is no agreement yet on this proposal which will harmonise the criteria for admission into the EU of highly qualified immigrants from third countries. Moreover, new measures will be taken to ease the reception of students and researchers and their movement within the EU.
The Commission has already adopted new initiatives to reinforce the EU's comprehensive approach to migration. One week before the official adoption of the Pact, the European Commission adopted a Communication on "Strengthening the global approach to migration: increasing coordination, coherence and synergies” which argues for more specific and more differentiated actions. The Commission has suggested to fully integrate migration into the European Union's other external policies, and to manage the EU's external dimension of the migration policy through partnership with third countries. The Commission also adopted a Report to the 2008 Ministerial Conference on Integration, to be held under in November, which is focused on how integration policies may contribute to the prevention of social alienation. It also suggests new instruments such as common European modules for integration and common tools for evaluating integration policies.
The EU Member States also committed to control illegal immigration in particular by ensuring that illegal immigrants return to their countries of origin or to a transit country. According to the Pact “illegal immigrants on Member States' territory must leave that territory” and “Each Member State undertakes to ensure that this principle is effectively applied.” Consequently, the Council has agreed “to use only case-by-case regularisation, rather than generalised regularisation, under national law, for humanitarian or economic reasons.” The return of illegally staying migrants is already covered by the recently adopted Return Directive. The UK has not opted into the Returns Directive but it cooperates in projects supported by the EU Returns Fund. The Pact also calls for the EU to conclude readmission agreements with third countries and to put in place common mechanisms for the return of illegally staying third countries nationals such as joint flights.
The EU Member States also committed to make border controls more effective in a spirit of solidarity. The European Council recalled that it is Member States responsibility the external border controls. However, the European Council agreed to generalise the issue of biometric visas as from 1 January 2012 at the latest and to strengthen Frontex powers.
According to the Pact the EU leaders are considering the possibility of setting up a European system of border guards. It should be recalled that last February the Commission adopted a package on the management of the EU’s external borders aiming at setting up an integrated EU policy on border management in order to ensure a uniform control and surveillance. The Commission has stressed its intention to consider an EU border police which would have serious consequences to national sovereignty. The creation of a European Border Guard entails external border control standards which would have to be implemented by national forces in charge of border controls which have different powers. It would require significant changes to Member States national services in charge of border controls.
The European Council has endorsed the European Commission border management package and it is expecting the Commission proposals for an entry/exit and registered traveller system, on an electronic system for travel authorisation and on the creation of a European Border Surveillance System.
The UK is not bound by the Frontex regulations nevertheless the UK Government is committed to Frontex and makes an annual financial contribution to it. It remains to be seen if the UK will opt out into the abovementioned measures. However, it seems that the UK by signing up this Pact has already given to Brussels further powers to control its own borders.
The EU leaders have also reiterated their commitment to construct a Europe of asylum. The Pact stresses that there are substantial remaining disparities among Member States as regards the grant of protection and the forms that protection takes. Whereas stressing that the grant of protection and refugee status is the responsibility of each Member State the European Council believes that the time has come to take new steps to complete the establishment of a Common European Asylum System. The Commission was invited to put forward by 2012 at the latest concrete proposals for establishing a single asylum procedure comprising common guarantees and for adopting a uniform status for refugees and the beneficiaries of subsidiary protection.
Malta was able to convince the EU leaders to insert in the Pact a stronger wording recognising that the burden of asylum- seekers entering the EU should be shared out among Member States. The Pact reads “For those Member States which are faced with specific and disproportionate pressures on their national asylum systems, due in particular to their geographical or demographic situation, solidarity shall also aim to promote, on a voluntary and coordinated basis, better reallocation of beneficiaries of international protection from such Member States to others, while ensuring that asylum systems are not abused.” The Commission will facilitate such voluntary and coordinated reallocation.
It should be mentioned that the Commission has adopted a Communication entitled “Policy Plan on asylum, an integrated approach to protection across the EU” which gives the Commission’s perspective on future policy and legislation in order to complete the second phase of the Common European Asylum System. The Commission has stressed that a Common European Asylum System must provide for a single common procedure, establish uniform statuses for asylum and for subsidiary protection, increase cooperation among the Member States, provide for rules on the determination of the Member State responsible for examining an asylum application as well as solidarity mechanisms.
The EU leaders have also agreed to create in 2009 a European support office with the tasks of assisting Member States in their implementation of a Common European Asylum System, collecting information on the countries of origin of asylum seekers, supporting Member States in crisis situations and ensuring common training. The Commission has announced that it will present in 2008 a legislative proposal for the creation of the EASO which will provide assistance to Member States in taking decisions on asylum claims whilst coordinating member states’ activities.
The European Council also committed to create a comprehensive partnership with the countries of origin and of transit to encourage the synergy between migration and development.
