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European union: EU Strategy paper on aylum and immigration: show of "political muscle"? copyright by: Nicholas Busch, Fortress Europe. 1999 A confidential "strategy paper" from the Austrian EU Presidency, leaked in early September, has drawn strong concern from human rights organisations. Criticism has mainly focussed on proposals for the EU to depart from prevailing international refugee law, by forcing a change of the 1951 Geneva Refugee Convention. However, the outlined strategy comprises even more disquieting elements. The EU should show "political muscle" in preventing refugee and migrant fluxes, the paper suggests, and enumerates possible foreign policy action ranging from economic pressure to military intervention against refugee generating States. The following review refers to the first draft of 1
July 1998 which better reveals the character of planned
EU policies in the field of migration and asylum than
later versions of the document, in which the wording of
some particularly controversial proposals has been
watered down without any change to their essence. The strategy paper begins with the observation that none of these objectives laid down in 1994 have been achieved. The EU "has not really managed to influence sustainably the reality of immigration", the paper notes. "Neither the potential to emigrate nor actual emigration from the main regions of origin has decreased in the past five years (rather the opposite). Furthermore, neither the control activities at the external borders of Schengen and the Union nor the member States' laws on aliens and asylum stop illegal immigration". The paper goes on to state that the proportion of illegal immigrants has "clearly increased". While the numbers of asylum seekers have stabilised since 1994, this has not led to a drop in the total number of illegal immigrants. Thus, while it has become "less attractive for illegal immigrants to seek asylum", people are continuing to pour into Europe. Poor areas of the world are "continuing to decline dramatically and migration to rich, especially Western European, countries now exceeds 1.5 million per annum". While deploring the EU's incapacity to give accurate information regarding the number of illegal immigrants on its territory, the paper notes: "It must be now assumed that every other immigrant in the first world is there illegally". The EU countries have achieved neither "the really crucial breakthrough in preventing or reducing the number of manifestly unfounded applications for asylum" nor "any real success in combatting the abuse of the right of asylum". With one exception - the crisis in Albania in 1997, they have been unable to prevent movements of mass exodus. The concept of temporary admission, designed to reduce the number of refugees granted permanent stay, got "bogged up at the very outset and... has not to date been implemented in the Union". Cooperation with transit States has not succeeded in stopping the influx of illegal migrants, police cooperation has not succeeded in "forcing back on a lasting basis" the trafficking of immigrants by international criminal organisations. No effective measures against illegal employment have yet been implemented... The paper concedes that, between 1991 and 1993, the
EU Member Statesintroduced a number of new concepts in
the field of asylum, such as:the concept of safe areas of
internal refuge in a persecuting State; the concept of
only one Member State being responsible of examining an
asylum application (Dublin Convention) and the
harmonisation of visa policies; and, the concept of
"temporary protection". "How effective is a common visa policy", the paper
asks rhetorically,when most immigrants "arrive illegally,
without a visa in any case",when countries of origin
refuse to take back their nationals, when the"capacity of
integration" of EU Member States is used "primarily
byillegal immigrants at the expense of legal
immigrants?". The paper comes to the conclusion that the only way to
handle the situation for the EU to reconsider
"traditional migration policymanagement patterns" and to
develop new "cooperative, transnational and comprehensive
multidisciplinary approaches", including the
establishment of a "new strategy", a "uniform policy
concept", agreed by all EU countries. The strategy proposals are based on the assertion that
"the possibilities of...eliminating economic causes of
migration from the Third World are undoubtedly very
limited" and that the same applies to "demographic and
environmental factors and to durable change in the human
rights situation". Consequently, the EU should
concentrate on taking action in "areas close to Europe,
where internal ethnic crises threaten to escalate". In taking such migration-preventive action the EU
should not limit itself to the political level only, it
is emphasised (point 53). Europe must "act independently"
and "not confine itself to joining the activities of
other bodies". Migration fluxes caused by various
conflicts dramatically affect vital security interests of
the EU Member States, it is argued, and therefore it is
"quite legitimate for Europe to take its own decisions
regarding intervention in such impending cases" (point
54). "[D]irect influence and presence is necessary, not
only for the prevention and rapid containment of
conflicts, but also for the restoration of normality,
which makes it possible for displaced persons to return
and stabilises regions in the longer term" (point 55).
The possibility of "voluntary repatriation" of third
country nationals should be actively safeguarded, "if
necessary using the same means of force employed by the
international community for maintaining peace and
bringing conflicts to an end" (point 131). All this amounts to a barely veiled call for
"independent", i.e. unilateral action by the EU States,
including military intervention not condoned by the UN
Security Council. Relations with emigration and
transit States: carrots and sticks Expansion of
development aid and economic cooperation with the main
regions of emigration to Europe is essential in reducing
immigration pressure, the paper acknowledges. However,
such privileged treatment granted by the EU to countries
of emigration and transit must be based on binding
commitments made by the third countries concerned to
contribute actively to reducing emigration to the EU
Member States. "Agreements with migrants' countries of
origin can prove a most effective dissuasive instrument
in migration management", it is noted (point 106). As an
illustration the paper states that "just about all the
European Union's bilateral agreements with third States
must incorporate the migration aspect...For instance,
economic aid will have to be made dependent on visa
questions, greater border-crossing facility on guarantees
of readmission, air-connections on border-control
standards, and willingness to provide economic
cooperation on effective measures to reduce push factors"
(point 59). A number of specific measures to be required from third States seeking bilateral agreements with the EU are enumerated under the rubric "Agreements with countries of origin and of transit". Referring to the refusal of certain countries of origin to take back their own nationals denied stay in the EU, the paper stresses the importance of readmission agreements and proposes a strategy: "Either the EU as an entity manages to use its international and political muscle to persuade such States to adopt such an agreement, or consideration is given to an international legal instrument enabling a person's identity to be determined [unilaterally] by an EU host country as well as linking such determination to the legal consequence that the country of origin thus ascertained is obliged to take back its nationals" (point 108). Countries of origin must be made to cooperate in
determining the identity of immigrants smugglers and
their clients. The burden of proving the nationality of a
person denied entry or stay on the territory of the EU
"should not rest solely with the expelling State".
"Objective means" of substantiating a person's belonging
to a nationality must suffice (Point 69). States with a
high potential of illegal migrants "must be induced to
set up effective fingerprint files" (point 69) [Are they
expected to take fingerprints from all their citizens?] .
The paper also calls for "the international exchange of
data on the identity of (immigrant) smugglers, rejected
asylum seekers and illegal immigrants (point 70). Last
not least, countries of origin and transit states should
be brought to conclude agreements authorising police of
EU countries to engage in hot pursuit and observation
across their borders (point 68). According to this model, all States of the world would be assigned to one of four "concentric circles" constituting a sort of defence line - around a first (or inner) circle, formed by the EU Member States, capable of fulfilling Schengen standards of control, and other countries which "do not cause emigration" but have become "target countries onaccount of their advanced economic and political situation" (points 60 and 116).
The third and the fourth circle would contain the
countries of emigration. The third circle would be formed
of countries of both emigration and transit, i.e. the CIS
area (former Soviet Union), Turkey and North Africa.
These countries would be required to "concentrate
primarily on transit checks and combatting facilitator
[migrant smuggler] networks". The fourth (outermost)
circle would consist of countries of emigration
apparently deemed somewhat beyond the reach of European
"political muscle" (Mention is made of "the Middle East",
China and "black Africa"). These countries are to be
encouraged to "eliminate push factors" of migration
(points 60 and 119). A country meeting the obligations arising from its
assignment to a particular circle would be rewarded. "For
example, the second circle must meet Schengen standards
as a precondition for EU membership; for the third
circle, intensified economic cooperation is linked to the
fulfilment of their obligations; and the fourth circle,
the extent of development aid can be assessed on that
basis" (point 61). For example, the introduction by the EU Member States
of a uniform asylum examination system based on a single
administrative instance of decision and a single instance
of appeal making quick decisions according to a binding
time-table is proposed as a means of combatting "illegal
immigration" (point 66). Moreover, asylum applicants who
have crossed the border illegally would automatically be
put back on the other side of the border and "any
procedures are initiated only after this has been done"
(point 92). It is stressed that "otherwise the individual
would be able in practice to void international
agreements of their effects thanks to the delaying effect
of asylum applications" (point 107). A series of measures proposed to combat immigrant
smuggling would also directly affect asylum seekers.
Among others, the paper recommends a review of the
experiences of the Action Plan on Iraq, the Schengen
"Task Force" on illegal immigration (Action Plan on Iraq
and Task Force: see CL No.53, p.1), national police
forces, Europol and the Schengen system with a view to
leading "an all- out attack throughout Europe against
smuggling over a period of two years", as well as the
implementation of "a penal policy of zero tolerance" in
combatting illegal migration. As for the Schengen Task
Force, the paper suggests its expansion to a full EU
Directorate General (point 121). The second category of proposals can be found under
the rubric "New refugee protection". These proposals have
drawn most public attention The grounds for flight have changed, it is argued. In
the past, most refugees were fleeing from "authoritarian
government regimes"; nowadays a majority of applicants
seek asylum on other grounds such as "inter-ethnic
conflicts", persecution by others than the State, and
"other threats to life on a large scale". According to
the paper, these (allegedly) new threats are not covered
by the 1951 Geneva Convention and are "much more
difficult to prove or disprove". As a result, "the
possibilities and limits of a properly constituted legal
procedure focussing on the individual case will be
exceeded" (point 101). Consequently, the paper suggests "a move to less
rule-of-law oriented approaches to protection and more to
politically-oriented approaches" (point 132).Achieving a
departure from prevailing international refugee law
and The "entirely successful" Dayton agreement is
mentioned as an example for "changing substantially" the
UNHCR's basic policy towards "repatriation of displaced
persons" and "local solutions to problems" rather than
"resolving the problems by accepting flows of refugees
intothird States" (point 35). The new role outlined for the UNHCR fits well with the
paper's critical remark that by recognising persons as
refugees the 1951 Geneva Convention encourages them to
settle permanently in the host country, whereas it should
be "possible and internationally acceptable for such
people to return home within a foreseeable future of
time" (point 127). A number of measures proposed in the paper aim at a
better "management"of immigration. The question of
improving the status and facilitating the integration of
legal immigrants is broached but the paper is remarkably
vague as to the solutions proposed. Integration
programmes should be developed, it says, but in view of
the "socio-political difficulties facing many Western
European States" they must be "socially Setting annual Immigration quota could be an effective means of migration management, it is claimed, "as long as [the quota] remain to some extent within a realistic framework". Illegal immigrants should be denied social welfare benefits and access to the labour market, the paper notes, but fails to give any answer to the question of how to deal with all the people thus excluded from society but nonetheless resident in the EU territory (point 83). Firm action is recommended against employers of illegal workers, but nothing is said about how such a policy could be implemented successfully now, when it has proved impossible to implement in the past (point 84).
Strategy paper on immigration and asylum policy, from
the Austrian Council Presidency to the K4 Committee,
1.7.98, 9809/98 CK4 27, This article can only be
published after contacting the editor: FORTRESS EUROPE - Circular Letter Editor: Nicholas Busch Blomstervägen 7, 79133 Falun, Sweden Phone / Fax +46-23-79 99 40 email nbusch@telia.com http://www.eurocoop.ch/fortress_europe.htm FORTRESS EUROPE? - Circular Letter (CL) offers news, analyses and comments on European developments in the fields of liberties and human rights, public order and security, policing, justice, data protection, immigration and asylum. Particular attention is paid to EU Justice and Home Affairs cooperation and Schengen policies. CL strives to provide a forum for mutual information and critical debate among experts, activists, scholars and practitioners throughout Europe. Readers are welcome to send texts and information suitable for publication in CL to the editor. SPONSORS: The Circular Letter is published with the assistance of grants from:
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