Preparing for the European Pact
French Immigration Minister Brice Hortefeux, after consulting his European counterparts earlier this year, presided over the drafting of the Pact. The text was unveiled at the Justice and Home Affairs Council Meeting in Cannes on 7-8 July 2008 and adopted by EU heads of state and government at a European summit in October.
With these developments in mind, on 17 June 2008 the European Commission published a communication entitled 'A Common Immigration Policy for Europe: Principles, Actions and Tools' and a policy plan entitled 'Asylum: an Integrated Approach to Protection across the EU'.
The communication spells out ten common principles underlying the EU's commitment to the issue. New mechanisms and instruments for the monitoring, evaluation and strengthening of migration governance throughout the 27 member states are also outlined.
The Policy Plan on Asylum, on the other hand, is a follow-up to the 2004 Hague Programme for the creation of a Common Asylum System. The document envisages the creation of solidarity mechanisms to offer adequate support to member states whose asylum systems are overburdened, at the request of southern European countries in particular.
The Commission is expected to table concrete legislative proposals in the second half of 2008 and during 2009. These must be approved by qualified majority vote in the Council and by co-decision with the European Parliament.
The Pact in detail
Global migration is a result of human and economic exchange. It can become a stimulus and a support for growth, but the changes it triggers in host societies can also become a disruptive factor and put social cohesion at risk. The European Pact on Immigration and Asylum highlights these two aspects of the phenomenon and paves the way for future action.
The Pact starts from the assumption that "the European Union […] does not have the resources to decently receive all the migrants who hope to find a better life here". It calls for better management of immigration and enhanced coordination at EU level as required by the creation of an area of free movement without internal borders.
The EU has already made notable progress towards integrated immigration policies, including the adoption of a common visa policy, the harmonisation of asylum standards and the establishment of the Frontex agency in charge of external border security.
The Pact's preamble, however, argues that these developments are insufficient, identifying five basic commitments for the development of a comprehensive EU policy on migration and asylum:
Legal migration: A comprehensive approach to legal immigration should be devised, in harmony with the needs and the capacity of each member state to receive immigrants "in a spirit of solidarity". The Pact builds upon the Blue Card initiative and the Commission's Policy Plan on Legal Migration, both of which are already in the pipeline;
Illegal migration: The centrepiece of this section is the organisation of "selective repatriation of illegal immigrants". This policy area is mainly covered by the recently adopted Return Directive. However, the Pact calls on member states to further enhance co-operation by organising joint flights for repatriation, improving readmission agreements and increasing the fight against human trafficking.
Border controls: The document focuses on the role of Frontex, the EU agency for external border security and proposes the establishment of two separate permanent bodies of command, one for southern and one for eastern member states.
Asylum policies: Member states are expected to develop common guarantees on asylum, as well as an asylum support office by 2009 and a single asylum procedure by 2010.
Foreign countries: The EU's approach to migration policy should deal with with the origin of third-country immigrants. The Pact suggests offering opportunities for legal migration tied to employment and education, but stresses the significance and benefits of circular migration.
'Solidarity and shared responsibility' rather than mass regularisations
Despite a general consensus on the French proposal, a ban on the mass regularisation of illegal immigrants had to be dropped during negotiations in Cannes in order to win the necessary support of the Spanish government.
Spain and Italy have resorted to such regularisations in the recent past. Italy's new government under Silvio Berlusconi has taken a tough stance on illegal immigration and mass regularisations. Zapatero's Spain wishes to keep the final decision on the means and procedures for regularisations within national competence.
Hortefeux rebutted allegations made by the press that the original document had been "watered down": the gist of the Pact remains the same, he insisted.
In particular, he highlighted an agreement on "mutual responsibility and solidarity" which calls on governments to systematically assess the impact of their migration and regularisation policies on other member states. In return, Mediterranean countries received reassurances of the solidarity of other EU member states when dealing with mass influxes of immigrants, primarily from Africa.
Legal migration approved, 'immigration contracts' rejected
According to the Pact, legal channels to enter Europe should be created to help member states find a balance between their need for (cheap) labour and their structural capacity to welcome and integrate immigrants.
Member states are expected to devise economic migration policies and as such become more attractive for highly qualified migrants, who tend to prefer the United States, Canada or Australia to the EU. Currently, 55% of skilled migrant labour goes to the US and only 5% to the EU. In this respect, the Pact echoes and integrates the European Commission's Blue Card proposal and Policy Plan on Legal Migration, both of which are already in the EU legislative pipeline.
Although the Pact stresses that temporary and circular migration should be prioritised, member states are also invited to establish ambitious integration objectives and pursue them through "appropriate policies".
But the idea of 'immigration contracts', presented by Hortefeux in the first drafts of the Pact, was dropped. The notion of migrants having to take compulsory language and culture classes upon arrival encountered strong opposition from the socialist-led Spanish government.
Striving for firm and fair repatriation of irregulars
The Pact largely draws and builds upon legislation contained in the recently adopted – and highly controversial - Return Directive.
The Return Directive establishes a common discipline for all member states to either expel or grant legal status to all illegally staying third-country nationals, in order to minimise grey areas. This provision is echoed by the Pact's requirement that all "irregular aliens on member states' territory must leave that territory".
To reach that end, the Pact proposes to enhance cooperation between member states and the migrants' countries of origin, with the aim of concluding readmission agreements and developing cooperation between member states themselves, including biometric identification of illegal entrants and joint repatriation flights. However, the draft Pact remains vague on the concrete aspects of such cooperation, which is left to the voluntary initiative of member states.
The call to devise incentives for the voluntary return of migrants also reflects a provision included in the Return Directive to grant migrants issued with a return order a period of seven to 30 days for "voluntary departure".
Making border controls more effective
External border controls have thus far been the responsibility of each member state. As external borders give access to an area of free movement, Mediterranean and Central European member states have been carrying out control on behalf of the entire EU.
Frontex, an EU agency headquartered in Warsaw, Poland, was established in 2005 for the management of external border security. To respond to requests for shared responsibility in managing borders, the Pact stresses the necessity to strengthen Frontex and allocate more resources to border controls. The document suggests creating specialised offices to account for different situations on the land border to the east and the sea border to the south.
Establishing a European Asylum System
The European Union has made considerable progress on the road to harmonisation of asylum regimes. Nonetheless, substantial disparities on protection grants and criteria persist among member states.
The Pact stresses the need for changes to asylum policies which should lead to the creation of a common European asylum system. Such a system would be supported by an EU asylum office, to be established in 2009, and the development of a single EU asylum policy by 2012.
The office will aim to facilitate exchange of information and cooperation between national administrations in charge of processing asylum applications. The single EU asylum policy will comprise common guarantees for asylum seekers and a shared definition of refugee status.
Creating Synergies between migration and development
Along the lines of the Pact, the organisation of legal migration and the fight against illegal immigration cannot be separated from the development of countries of origin and transit east and south of the European Union.
NGOs, international organisations and many politicians have stressed the dangers of selective economic migration. While aiming to attract the best minds to Europe, they argue that initiatives such as the EU Blue Card could worsen the brain drain phenomenon and impoverish developing countries. Moreover, they believe this could lead to a catch-22 situation: if more engineers, doctors and entrepreneurs migrate to Europe, fewer jobs for unskilled labour will be available in developing countries, leading to a further increase in migration to Europe.
The possible integration of migration and development policies must be thoroughly studied, explained Minister Hortefeux while presenting the Pact to the European Parliament last July. This will provide a safe ground on which to build initiatives supportive of circular migration and knowledge transfer. Opportunities will be then offered to workers and students willing to settle in Europe. At the same time, co-development action will be promoted to enable migrants to take part in the development of their home countries.