Eu Migration Policy: Comments On The Results Of The Latest European Council

Steve Peers

Alongside ‘Grexit’ as well as ‘Brexit’, the upsurge inwards immigration to the European Union is a farther crisis which the European Union has to juggle simultaneously. The commencement circular of European Union reactions to the crisis culminated inwards the emergency European Union summit (‘European Council’) inwards April. I discussed the results of that summit here. Subsequently, the Commission released its ‘Agenda’ on European Union migration inwards mid-May (see give-and-take here), as well as its detailed proposals subsequently that calendar month (see give-and-take here). Last calendar week the European Council discussed immigration issues again, as well as came to a number of conclusions. This weblog postal service sets out those conclusions, alongside my comments annotated. (I own got left out the tertiary purpose of the conclusions, which vaguely hope to a greater extent than cooperation alongside tertiary countries.)

It’s interesting to compare the final text alongside the in conclusion draft of the summit conclusions (see total text here). To brand that comparing easy, I own got indicated below what changed betwixt the penultimate as well as final versions of the text. (Underlined words were added to the final version; words inwards strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced as well as geographically comprehensive approach to migration, based on solidarity as well as responsibility. Following the decisions taken past times the European Council in conclusion April, concrete measures own got been taken to forestall farther loss of life at sea, to observe novel ways of confronting smugglers as well as to intensify cooperation alongside countries of root as well as transit, spell respecting the correct to seek asylum. The launch of the EUNAVFOR MED mission, decided on 22 June past times the Council, is an of import contribution inwards this respect. Operational activity to tackle the traffickers as well as smugglers inwards accordance alongside international law is an essential purpose of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its instant as well as tertiary phases (where the boats are destroyed) cannot instruct started until the Libyan regime or the Security Council endorse the operation. For details as well as criticism come across here.

2. Further to the Commission's European Agenda on Migration, go should go taken frontward on all dimensions of a comprehensive as well as systemic approach.

The summit conclusions inwards fact address much of the item of the Agenda.

3. Wider efforts, including the reinforcement of the management of the Union’s external borders, are required to ameliorate incorporate the growing flows of illegal migration. Today, the European Council focused on iii fundamental dimensions which must go advanced inwards parallel: relocation/resettlement, return/readmission/reintegration as well as cooperation alongside countries of root as well as transit. The Council volition regularly assess progress inwards all iii strands as well as study dorsum subsequently inwards the year.

As noted above, I own got omitted the tertiary dimension (cooperation alongside countries of root as well as transit) from this weblog post.

Relocation/resettlement

4. In the low-cal of the electrical flow emergency province of affairs as well as of our commitment to reinforce solidarity as well as responsibility, as well as inwards employment alongside its Apr conclusion in all its regards, including paragraph 3, the European Council agreed on the next interlinked measures to aid 60.000 people:

Paragraph 3 of the Apr conclusions refers to the European Union interception as well as search as well as rescue missions inwards the Mediterranean. Odd that such missions dare non verbalize their advert inwards these latest conclusions.

a) the temporary as well as exceptional relocation over 2 years from the frontline Member States Italy as well as Hellenic Republic to other Member States of 40.000 persons inwards clear postulate of international protection, inwards which all Member States volition participate;

The final version of the conclusions adds a footnote stating that the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland volition non participate. The number of 40,000 matches the number inwards the Commission’s proposal. So does the two-year time-frame, as well as the focus on Italy as well as Greece. The reference to ‘persons inwards clear postulate of international protection’ suggests that the focus volition stay on Syrians as well as Eritreans (as the Commission proposed), every bit refugee claims from these 2 nationalities own got a real high success rate.

b) the rapid adoption past times the Council of a Decision setting upwards a temporary as well as particular machinery to this effect; to that end, all Member States volition grip by consensus past times the goal of July on the distribution of such persons, reflecting the specific situations of Member States;

There is a commitment to adopt a legally binding text, although presumably its content volition differ greatly from the Commission proposal, inwards particular because many Member States dislike the thought (or the detail) of the Commission’s proposals on distribution. The added understanding that the distribution volition go agreed past times ‘consensus’ agency effectively that the numbers accepted inwards each Member State volition go voluntary, although the Treaty calls for qualified bulk voting on this issue. The added reference to ‘specific situations’ is (according to press briefings) intended to exempt Republic of Hungary as well as Republic of Bulgaria from obligations, inwards low-cal of the large number of asylum-seekers they currently receive. Obviously it is hard to come across how the legally binding target of 40,000 asylum-seekers tin privy genuinely go met if Member States alone own got to volunteer to pick out the relevant numbers. If a Decision alongside such an obligation is adopted but the offers of admission autumn brusque of 40,000, at that spot could go an interesting legal inquiry every bit to whether as well as how the numbers could soundless go enforced.

c) the setting upwards of reception as well as commencement reception structured border zones and facilities inwards the frontline Member States, alongside the active back upwards of Member States' experts as well as of EASO, Frontex as well as Europol to ensure the swift identification, registration as well as fingerprinting of migrants ("hotspots"). This volition allow to determine those who postulate international protection as well as those who do not. The Commission volition depict up, in closed cooperation alongside the hosting Member States, a roadmap past times July 2015 on the legal, fiscal as well as operational aspects of these facilities;

The reference to ‘structured border zones’ inwards the before draft has been altered, mayhap because about perceived it every bit a shape of quarantine. Frontex is the European Union borders agency, as well as the EASO is the European Union asylum back upwards agency. They don’t own got powers to fingerprint migrants etc every bit such, but they tin privy aid coordinate Member States’ actions. On the other hand, it’s non clear why Europol, the European Union police describe agency, needs to go involved, as well as indeed the conclusions seem to telephone vociferation upwards for it to go past times its legal powers. It has a potential role inwards investigating smugglers, but the conclusions refer alone to its involvement inwards an immigration law process.

Fingerprinting of irregular migrants who cross the external borders, every bit good every bit asylum-seekers, is a long standing European Union law obligation inwards the Eurodac Regulation, but frontline Member States own got frequently been defendant of non applying it. If to a greater extent than such people are fingerprinted, as well as so it volition go easier to guarantee their render from other Member States similar the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland nether the EU’s Dublin rules on asylum responsibility, if those migrants go to about other Member State as well as apply for asylum there. The Commission late released a newspaper on coercive methods to fingerprint migrants, discussed here.  

d) the immediate provision of enhanced fiscal assistance to the frontline Member States to aid alleviate the costs of receiving as well as processing applications for international protection;

An emergency European Union budget growth has already been approved.

e) the understanding that all Member States volition participate including through multilateral as well as national schemes inwards the resettling of 20.000 displaced persons inwards clear postulate of international protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue, which has already been adopted. Resettlement agency that the persons concerned are moved direct from refugee camps inwards countries similar Lebanese Republic or Turkey. In fact the wording (‘displaced persons’) also covers Syrians who own got fled to camps elsewhere inside Syria. Legally speaking this grouping of people aren’t ‘refugees’ since they haven’t left their habitation country; international law refers to people who own got fled inside their ain countries but who soundless own got non bad protection needs every bit ‘displaced persons’ instead. They could qualify every bit ‘refugees’ in 1 lawsuit reaching the EU, however, since they would necessarily as well as so own got left Syria. The United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland has pledged a real modest growth inwards the modest numbers of refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission as well as reintegration policies for those non qualifying for protection are an essential purpose of combating irregular illegal migration as well as volition aid discourage people from risking their lives. All tools shall go mobilised to promote readmission of irregular illegal migrants to countries of root as well as transit, edifice on the ideas presented past times the Commission at the Council on xvi June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address objections that the word ‘illegal’ is the incorrect term to use. There is a footnote referring to the alphabetic lineament as well as it tin privy go found via Google, but it is hardly transparent non to attach it every bit an Annex to the Conclusions. It’s non hyperlinked to the conclusions either. But you lot tin privy follow this link for the text of the Commission alphabetic lineament as well as give-and-take of it.

It must go noted that this department only applies to people who do non qualify every bit refugees or for about other shape of protection. Some press stories had suggested, on the reason of leaked drafts of the conclusions, that the European Union wants to ‘send all the migrants back’. This is patently false: this department is clearly express inwards ambit (‘those non qualifying for protection’) as well as the commencement department of the conclusions non alone shows an intention to relocate people needing protection within the EU but also to bring to a greater extent than of them to the EU. Since a pregnant proportion of migrants come upwards from Syrian Arab Republic as well as Eritrea, as well as a huge proportion of their asylum claims are successful, anyone who claims that ‘the vast bulk of people crossing the Mediterranean are economical migrants’ is quite only lying.

In particular: a) high-level dialogues alongside the primary countries of root of irregular migrants should go launched past times the High Representative every bit before long every bit possible, inwards closed cooperation alongside the Member States. The Council, together alongside the Commission, volition fix a global bundle to back upwards the negotiations alongside the tertiary countries concerned;

Most of the issues hither are non unusual policy issues every bit such, so the High Representative should alone go discussing them inwards her role every bit the coordinator of her colleagues inwards the Commission, non every bit unusual policy representative. So this looks similar an internal Commission ability grab, although it’s in all probability also truthful that she volition come upwards alongside to a greater extent than political potency than the Home Affairs Commissioner. There may of course of study go a corresponding ability fighting betwixt national unusual as well as interior ministries here.

b) the Commission volition ensure that readmission commitments are implemented effectively every bit before long every bit possible, notably those nether the Cotonou Agreement, as well as that ongoing negotiations on readmission agreements are accelerated as well as concluded every bit before long every bit possible, spell novel negotiations volition go launched alongside other tertiary countries;

The ongoing negotiations are alongside Republic of Belarus (nearly complete), Kingdom of Morocco as well as Tunisia. Talks alongside People's Democratic Republic of Algeria as well as PRC were approved years ago, but never started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean Area as well as modest Pacific isle States, although evidently the conclusions are referring alone to African states. 

c) edifice on the "more-for-more" principle, European Union assistance as well as policies volition go used to create incentives for implementing existing readmission agreements as well as in conclusion novel ones. Commitments laid out inwards merchandise agreements regarding the temporary presence of persons for the provision of services should go used every bit an incentive to conclude readmission agreements; evolution policy tools should reinforce local capacity building, including for border control, asylum, counter-smuggling as well as reintegration;

The European Union has concluded readmission treaties alongside most countries to the E as well as south-east past times offering visa facilitation deals, as well as inwards about cases the long-term prospect of a visa waiver. It has also offered visa facilitation to Kingdom of Morocco as well as Tunisia. It’s clear from the other recent documents that the European Union doesn’t desire to offering visa facilitation to sub-Saharan African countries, thence the quite novel thought of offering them admission of service providers instead. Interestingly, the marketplace access aspects of service provision apply to all Member States (ie, including the UK), although the immigration law aspects (such every bit facilitated visas as well as permits just for this category of persons) arguably autumn inside the ambit of immigration law, where the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland opt-out applies. The Commission’s migration agenda had referred to plans to advise rules on this issue, but it had non linked them to readmission.

As for evolution policy cash, this also applies to all Member States, unless about external coin inwards the habitation affairs budgets tin privy go used. This phrase could also refer to national evolution policy budgets. The of import inquiry is whether this is novel money, or volition go diverted from edifice schools or hospitals, or aiding human rights defenders.  

d) Member States volition fully implement the Return Directive, making total utilization of all measures it provides to ensure the swift render of irregular migrants; render decisions issued past times the Member States volition go introduced inwards the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but inwards fact the Commission newspaper referred to to a higher identify urges Member States to lock upwards irregular migrants for every bit long every bit possible as well as to utilization derogations inwards that Directive, which could justify limiting judicial review, as well as belongings irregular migrants (including families) inwards prisons, mixed inwards alongside the full general prison theater population of convicted criminals. Further comments on this here.

Some or all entry bans are already introduced inwards the Schengen Information System (SIS), as well as the Commission plans to advise a legal obligation that all of them volition be. But introducing all return decisions inwards the SIS is quite new, since non all render decisions outcome inwards entry bans. In fact, this is the commencement novel category of information to go added to the SIS since it was established. It volition pick out about fourth dimension as well as coin (as good every bit novel European Union legislation) to laid this up.

Note that the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland volition non own got access to this data, since it does non participate inwards the immigration-related aspects of the Schengen system. It does own got access to the dissever Eurodac database, of people who applied for asylum or crossed the borders irregularly inwards about other Member State, although it tin privy alone access this is those people as well as so apply for asylum inwards the UK.

e) the Commission volition laid out past times July 2015 how Frontex volition pick out immediate back upwards to frontline States on return. The Commission has announced its intention to advise to amend the Frontex Regulation to strengthen the role of Frontex, notably so that it tin privy initiate render missions;

The Commission newspaper also wants to give Frontex a role inwards going to tertiary countries as well as arranging render flights, as well as inwards expelling people from a unmarried Member State. The in conclusion laid of amendments to the Frontex Regulation inwards 2011 allow Frontex to own got its ain assets. Perhaps ‘Air Frontex’ – the 1 airline you lot never desire to go on – is coming?

f) inwards lodge to accelerate the handling of asylum applications, the Commission volition laid out past times July 2015 measures to go taken to utilization EASO to coordinate the implementation of the "safe province of origin" provisions inwards the Asylum Procedures Directive. The Commission has indicated its intention to strengthen the "safe province of origin" provisions inwards the Asylum Procedures Directive, including the possible institution of a mutual European Union listing of prophylactic countries of origin;

It’s non clear what EASO volition go doing here. It can’t create upwards one's heed on asylum applications, but alone give guidance. As for the legislative proposal, the Council tried to grip on a mutual listing of prophylactic countries of root inwards 2005, but failed epically. It’s non so problematic to include countries where the failure charge per unit of measurement is 99%, but becomes hard to include countries where fifty-fifty 10% or 20% of applications are successful – since that is a lot of people whose claims won’t go adequately assessed.

g) adequate agency volition apace go made available inwards back upwards of an effective European Union render policy; furthermore, the Commission is invited to brand proposals inwards this abide by inwards the context of the 2016 European Union budget, as well as to laid upwards a dedicated European Return Programme.

This suggests to a greater extent than cash volition before long go available for removals. It looks every bit if the ‘European Return programme’ is only going to go an official advert for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests that it was a failure on immigration issues, because Member States wouldn’t grip to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit conclusions soundless refer to adopting a binding stair out requiring the relocation of 40,000 people. If Member States do goal upwards relocating 40,000 refugees, there’s non much dot quibbling nigh precisely how they did it. However, the replacement of quotas past times voluntary offers makes it less probable that this number volition go achieved, as well as inwards that illustration the Council powerfulness create upwards one's heed non to adopt the Decision after all.  

Having said that, fifty-fifty if the number of people relocated ends upwards at 20,000 or 30,000, instead of 40,000, that volition contribute to reducing the pressure level on Hellenic Republic as well as Italy. It volition go significantly to a greater extent than than the niggling number of people relocated inwards the past. The real beingness of this commitment is an implicit admission that the Dublin organisation is a failure. And the commitment to resettle 20,000 people is a bigger contribution than the European Union has made before inwards that context too.

All this is counterbalanced past times the decisions on render as well as readmission. It seems that at that spot is a quid-pro-quo betwixt a to a greater extent than generous policy on asylum as well as a to a greater extent than restrictive policy on irregular migration. Certainly this purpose of the conclusions shows the importance of implementation of European Union law past times the Member States. The Commission has committed itself to encouraging Member States to apply the Directive every bit restrictively every bit possible, so it volition autumn to NGOs as well as migrants’ legal advisers to monitor what goes inwards practice, as well as challenge it if necessary.

‘The Commissioner suggested that nosotros do it’ is non inwards whatever way a sufficient legal argue to lock upwards families together alongside convicted prisoners, spell limiting judicial review. Rather, whatever Member State wanting to apply exceptions from detention standards inwards the Returns Directive has to present that an ‘exceptionally large number of third-country nationals to go returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff’, presumably separately (ie it’s possible that the facilities are overburdened but the judges aren’t, or vice versa). It must also goal the derogation every bit before long every bit atmospheric condition own got changed, as well as also inform the Commission. CJEU illustration law (Kamberaj) suggests, past times analogy, that the conclusion to lower detention standards is invalid unless that latter procedural requirement is fulfilled.  There’s a goodness declaration that derogation clause is itself invalid, every bit a breach of the Charter rights to household unit of measurement life, access to courtroom as well as the rights of the child. At the real to the lowest degree it must go interpreted inwards low-cal of those Charter rights, as well as the similar protections laid out inwards Article v of that Directive.

Barnard & Peers: chapter 26

Photo: Zaatari refugee army camp inwards Jordan, past times United States of America Department of State

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