FROM THE TAMPERE AGENDA TO THE HAGUE PROGRAMME The by inthefire

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									    FROM THE TAMPERE AGENDA TO THE HAGUE PROGRAMME:                                         The first five years of
    European Community Immigration and Asylum Law and Policy after the Amsterdam Treaty.
    Helen Toner, School of Law, University of Warwick, UK. H.F.Toner@warwick.ac.uk
    Paper delivered at conference at University of Barcelona, December 2004. Preliminary working draft only:
    please do not cite or quote.




The transfer of the competences in the Amsterdam Treaty from the intergovernmental Third Pillar to the
Community First Pillar, and their subsequent use to develop a range of legal instruments alongside action plans,
papers and policy documents, can hardly have escaped the notice of many, indeed probably most or all, of the
members of an audience such as this. The aims of this paper are to
      (1) Review briefly the main areas of competence relating to migration and asylum introduced in the
          Amsterdam Treaty and the developments foreseen in the Tampere programme;
      (2) Outline and evaluate the major the developments that have actually taken place since 1999; and
      (3) Outline and evaluate some of the main features of the agenda set out in the Hague programme for the
          next five years.
It must be emphasised that this will inevitably be an overview aiming merely to draw out the most significant
themes and issues and presenting a broad-brush assessment of the progress thus far. I will only be able to
scratch the surface, rather than attempting to present a comprehensive and detailed analysis of all the relevant
issues.1 I will first outline the mandate as it emerges from Amsterdam and Tampere and say a few words about
the decision-making process in general, before moving on to look briefly at the principal developments in four
policy areas (asylum and refugee measures, legal migration and integration, visas and borders and
illegal/irregular migration).2   I will then say a few words about the Commission’s own assessment of the
programme and evaluate how far this assessment can be accepted as realistic. Finally, I will address the main
features of the agenda being drawn up for the next five years under the title of the Hague programme, making
reference also to the significance of the provisions contained in the draft Constitutional Treaty. In particular
however it is worth noting and recalling that all of this discussion relates to third country nationals, not EU
Citizens, and only to those not covered by special regimes for certain categories of third country nationals from
particular countries with which agreements have been concluded.3



1
  For further details see in particular the primary documentation: the Commission Communication COM (2004) 401 ‘Area
of Freedom Security and Justice: Assessment of the Tampere Programme and Future Orientations’ and two Commission
Staff working papers annexed to this: SEC(2004) 693, a fuller discussion paper, and SEC(2004) 680, a document simply
listing the most important instruments adopted. The measures adopted are too numerous to cite individually here, although
some of the most important will be discussed during this paper. For other independent general discussion of the progress
from 1999 to 2004, see J Niessen Five Years of EU Migration and Asylum Policy-making under the Amsterdam and
Tampere Mandates (Migration Policy Group, 2004) and the ILPA (Immigration Law Practitioners Association) Response
to the Commission’s Communication: Area of Freedom Security and Justice: Assessment of the Tampere Programme and
Future Orientations, (ILPA, 2004) and a further forthcoming Response to the Hague Programme (ILPA, 2004) available
online at www.ilpa.org.uk. This paper draws on all of these sources for general background throughout, as well as on the
other literature and specific legislation and policy documents quoted through the rest of the paper in relation to particular
points. Finally, the author is, as ever, very grateful to the other members of the ILPA EC law subcommittee for many
informative, lively and enjoyable discussions of so many of these issues over the past few years.
2
  In arranging the material and discussion in this way I make no particular claim to novelty or originality: this kind of
classification emerges naturally from the primary materials and is used by others: see above n1.
3
  As Pastore notes, (p 93) this is a significant exclusion, quoting Oliveira suggesting up to 50% of TCNs covered by special
migration regimes, although this proportion is likely to have diminished with the movement of significant numbers covered
by Accession Agreements into the entirely different category of EU Citizens in May 2004.
                                                              1
1       The Amsterdam competences and the Tampere programme


Competences in the Amsterdam Treaty
These are contained in Title IV and set out a five-year deadline for adoption of certain matters. For ease of
reference they are attached at the end of this paper. They include in Article 62 competences to enact measures
dealing with borders (absence of controls at internal borders 62(1) and crossing external borders 62(2)a), and
visas (62(2)b) and measures dealing with freedom for third country nationals to travel for less than three
months, including a five year period for the Council to act. In Article 63(1) competence is given to enact
measures dealing with asylum, 63(2) other measures dealing with temporary protection and sharing
consequences of receiving refugees and displaced persons, 63(3) measures dealing with immigration policy in
particular conditions of entry and residence (including family reunification), illegal immigration and residence
(including repatriation) and measures dealing with terms of third country nationals taking up residence in other
member states. Again there is a five-year period for the council to act but burden sharing (2b), legal entry and
residence (3a) and legally established third country nationals taking up residence elsewhere in the EU (4) are
not subject to the five year period. Article 67 sets out arrangements for decision making – initially general
procedure of shared initiative of Commission or Member State with consultation of Parliament and unanimous
decision in Council but after five years transition of some parts of Title IV to qualified majority voting and co-
decision with the European Parliament and provision for the Council (deciding unanimously) to move all or part
of the rest of the Title to the co-decision and qualified majority voting. The jurisdiction of the Court of Justice is
also curtailed under this Title – Article 68 – with references only admissible from those courts against whose
decision there is no judicial remedy – although there is again provision for this to be adapted after five years by
unanimous voting in Council.


The Tampere programme for implementing these competences: and beyond?
Again these will be familiar to many but a few words may be said. They included the establishment of the first
stage of a Common European Asylum System based on a full and inclusive application of the Geneva
Convention.    The particular measures envisaged were ‘a clear and workable determination of the State
responsible for the examination of an asylum application, common standards for a fair and efficient asylum
procedure, common minimum conditions of reception of asylum-seekers, and the approximation of rules on the
recognition and content of the refugee status. It should also be completed with measures on subsidiary forms
of protection offering an appropriate status to any person in need of such protection’. Later it was envisaged
that ‘Community rules should lead to a common asylum procedure and a uniform status for those who are
granted asylum valid throughout the Union’. As to third country nationals the Tampere conclusions envisaged
‘fair treatment of third country nationals who reside legally on the territory of its member states.         A more
vigorous integration policy should aim at granting them rights and obligations comparable to those of EU
Citizens’ and continued that ‘the legal status of third country nationals should be approximated to that of
member states nationals’ and that long term residents should be ‘granted in that state a set of uniform rights
which are as near as possible to those enjoyed by EU citizens’. Management of migration flows is another
theme in the Tampere conclusions.


Participation by Ireland and Denmark
It is worth noting at this point that Denmark, Ireland and the UK have a particular position here: they are not
bound by these measures in the same way as other Member States. The UK and Ireland have negotiated a

                                                        2
position whereby they may opt in to measures if they wish but are not bound to do so. In practice this discretion
has been used by the UK in favour of opting in to many of the measures dealing with asylum and irregular
migration, but much less so in relation to those measures dealing with legal migration (the long term resident
third country nationals and family reunification Directives in particular, neither have opted in) and borders.
Ireland has followed a fairly similar but not identical pattern of participation.4




2        A general assessment: decision making process and outcomes


There are several important features of the decision-making process under the Amsterdam and Tampere
madates which require some preliminary comment.                  Member States (unusually) have shared the right of
legislative initiative with the Commission during this initial period of five years. Unanimous voting (the ‘veto’ of
which we hear so much in the press and media discussion of all things related to the EU) is the decision-making
process thus allowing one Member State to block progress on a desirable measure (or, on the contrary,
depending on one’s point of view, allowing one Member State to hold out against measures being agreed in an
undesirable state and enabling them to hold out more effectively for adequate standards). Co-decision with the
European parliament is not yet used, it only has consultation rights, and this means that the views expressed
are all too easily sidelined and ignored by the Council.         This has undoubtedly affected the outcome: bargaining
and decision-making in the ‘shadow of the veto’ is clearly a different matter from taking the same decisions
under a majority-voting system. Moreover, in its role as initiator of proposals and in discharging its responsibility
to guide legislation through the process from Proposal to final text (Directive or Regulation), the Commission
undoubtedly faces a task different – admittedly more difficult and delicate – from that which would face it under
a QMV/co-decision procedure.


Certain problems have become apparent during this process: in particular, the process has been slow - at times
downright laborious and frustrating - and agreement has proved somewhat difficult to reach on contentious
points. The views of the European Parliament have not always been listened to, and thus the democratically
directly elected voice of European citizens has seemed sadly muted in this process. More than one piece of
legislation is now subject to litigation5 as a result of this lack of accountability, democracy, and legitimacy in the
legislative process, as it seems clear enough that a number of these disputes could well have been resolved
without litigation had the Parliament’s input been taken more seriously, and in particular had its institutional
position in relation to these matters been stronger from the outset.                  As a more general point, for those
concerned about the repressive and restrictive tendencies in the legislation that has been produced, and
concerned about the threats to human rights posed by some of the measures, the marginalisation of the

4
  Details of measures adopted may be found in the Commission working paper SEC(2004) 680 but this does not appear to
contain detailed information about opt-ins. The author has obtained information on these opt-ins from the ILPA legislative
update prepared by Steve Peers, most recently updated on 8th Dec 2004.
5
  On visas, the Commission has challenged the legality of the Council’s reservation to itself of implementing powers in
Regulations 789/2001 and 790/2001. On Family Reunification, the Parliament has challenged certain restrictive provisions
of the Directive, and the Passenger Data Transfer Agreement with the USA, although not strictly speaking a Title IV
measure, is clearly a closely linked issue, and the Parliament is concerned that the agreement has proceeded despite
repeated warnings from it about the degree of involvement it has had in drawing up the agreement and certain terms of it
relating to the adequacy of data protection. The Agreement was referred to the ECJ for opinion but concluded anyway.
The Commission’s decision to declare the data protection arrangements as sufficient as well as the decision to adopt the
agreement are now subject to retrospective challenge. On Asylum, the text of the Asylum Procedures Directive has been
subject to criticism and a challenge to this, if and when it is adopted in the current format, is not out of the question: further
discussion of this measure follows below. For general discussion of the litigation that has arisen, see the ILPA response to
the Commission’s Communication, n1 above.
                                                               3
European Parliament is regrettable as this is the one Institution which often speaks out most strongly in defence
of these issues and rights when legislation is being drawn up.


One may still wonder however whether the Commission has really taken the initiative to steer things through as
best they might have done, and whether it is entirely fair to lay most or all of the responsibility with the Member
States in the Council for watering down and compromising what were originally acceptable and adequate
Commission Proposals. Certainly ILPA, in responding to the Commission’s evaluation of progress in mid-2004,
does not think so.6


Another general comment on the content and themes of the measures adopted and agreements reached may
be in order before embarking on the somewhat more detailed description and brief analysis of each of the policy
areas. Niessen suggests7 that another reason for the slow progress and gradual lowering of standards is the
continued negative perception of migration and asylum-seekers. He continues, ‘as a result, European action
has mostly been reactive, dealing with crises over unwanted arrivals, than pro-active, making efforts to attract
and integrate migrants and generously protect and receive asylum-seekers. Migration management was at best
migration crisis management’.




3        Asylum and refugee measures


The first stage of the assembly of a ‘Common European Asylum System’ was the programme set out in
Amsterdam and Tampere to enact four particular measures by the deadline of May 2004. The four central
building blocks envisaged were:
    1. Minimum standards for reception of asylum seekers.
    2. Establishing which country is responsible for the examination of an asylum claim.
    3. A common definition of refugee and subsidiary protection status
    4. Minimum standards for procedures for asylum claims.
Much time and attention has been devoted to the development of these asylum measures and therefore they
deserve a prominent place in any analysis such as this one. This will therefore be the longest section of the
paper.


The main asylum and refugee measures to complete the first stage:
Three major Directives have been drawn up, dealing with Asylum Procedures,8 Reception Conditions,9 and
Qualification for Refugee and Subsidiary Protection status.10 At the time of writing in December 2004, the
Directives on Reception Conditions and Refugee Definition have been agreed, but the Asylum Procedures
Directive remains to be completed. Most recently on this measure, a ‘revised general approach’ has been
agreed by the Justice and Home Affairs Council in November 2004 but the European Parliament has to be re-
consulted. The main features of the (1990) Dublin Convention dealing with determination of which Member

6
   ILPA response to the Commission’s Communication, n1 above, in particular suggesting that on occasions the
Commission’s voice and use of its initiative has not been as strong and effective as it might have been and also pointing to
the progress – under another DG – of the Directives intended to on combat discrimination passed under the new
competence introduced in Amsterdam in Article 13 EC.
7
  Niessen, n 1 above at p 43.
8
  Commission Proposal COM(2000) 578, Amended Proposal COM(2002) 362.
9
  Directive 2003/9, [2003] OJ L31/18.
10
   Directive 2004/83, [2004] OJ L304/12.
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State has responsibility for determining applications for asylum has now been adopted without significant
change as a Regulation, the ‘Dublin II’ Regulation.11 Finally, a Directive setting in place a system for Temporary
Protection which may be deployed in the event of mass influxes of displaced persons12 was agreed, and a
Refugee Fund13 has been operational for some time to distribute financial assistance for various programmes.
The first phase of this funding distribution programme is now complete and a new Decision establishing a
second phase with new funding of has just been adopted. So, the first four building blocks of the Common
European Asylum System are either in place or nearly so, and have been supplemented by other measures
such as Eurodac, the Refugee Fund and the Temporary Protection Directive.


Compliance with the Geneva Convention and other international law obligations: general comments
A brief general word is necessary here14 concerning the weaknesses in the measures that have been drawn up
and the extent to which they comply with international law standards and obligations by which the Member
States are bound and to which the EU itself is committed at least politically if not strictly legally bound in the
same way as individual Member States. The Geneva Convention is the most obvious one, but obligations
under the UN Convention against Torture (UNCAT) and the ECHR (in particular Article 3 relating to the
prohibition of torture or inhuman or degrading treatment, including, according to European Court of Human
Rights jurisprudence, the obligation not to return a person to a country where there is a substantial risk that
he/she will be subjected to such treatment) are also highly relevant. When a more detailed analysis of the
interaction between these international obligations and the measures being develop is undertaken, the picture is
not a universally positive one. Guild concludes that ‘… one has the impression that the Member States are
seeking to draw up a new acquis unencumbered by their international commitments’. In particular she also
notes that some Member States have fought hard to secure inclusion of particular provisions in these measures
which have already been criticised by supra-national or national courts.15                 She concludes that ‘They [the
Member States] thereby give the impression that they wish to re-write the rules to get rid of inconvenient human
rights issues’. So much for the general overview: I shall now move briskly through each of these measures and
point out briefly some of the major issues that have been encountered.


Asylum Procedures16
This Directive is intended to put into place a system of minimum standards in relation to the Asylum Procedures.
It has not yet been finally agreed, although it is by now in the final stages of the process and: currently the
Council have reached a revised general approach in late 200417 and the European Parliament must now be
consulted again. The main concerns of Member States in developing this measure seem to have been to put in

11
   Regulation 343/2003, [2003] OJ L50/1, further Commission implementing Regulation 1560/2003, [2003] OJ L222/3.
12
   Directive 2001/55, [2001] OJ L2112/12.
13
   Decision 2000/596/EC, [2000] OJ L252/12. A second decision establishing an extension of the European Refugee Fund
into a second phase of funding was adopted by the Council in December 2004.
14
   On this topic there is a growing literature, often sceptical and critical of the standards being developed in the legislation.
In particular useful discussion of a number of these issues on which this section draws are E Guild, ‘Seeking Asylum:
Storm Clouds Between International Commitments and EU Legislative Measures’ (2004) 29(2) ELRev 198, also ECRE
‘Broken Promises, Forgotten Principles: An ECRE evaluation of the development of EU minimum standards for refugee
protection’ (ECRE 2004), UNHCR "The European Union, Asylum and the International Refugee Protection Regime:
UNHCR's Recommendations for the New Multiannual Programme in the Area of Freedom, Security and Justice", A
Baldaccini ‘Refugee Protection in Europe – Reconciling Asylum with Human Rights’ (2004) 1 Justice Journal 117-128.
15
   Examples she gives are of the Dublin II Regulation, and the provision of UK law denying benefits to asylum-seekers:
the UK insisted on including a provision in the Reception Conditions Directive to enable the operation of this scheme to
continue, but its operation has been subject to criticism by Courts and it is, in effect, currently suspended.
16
    See generally the ILPA analysis and Critique of the Directive prepared by Cathryn Costello, available on
www.ilpa.org.uk website.
17
   Council Document 14203/04, including the latest draft.
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place accelerated procedures ensure that as many as possible are dealt with by these accelerated procedures –
and it has also been criticised for being a weak and ineffective exercise in harmonisation in any event. ILPA
has described a recent version of the text as a ‘catalogue of national worst practices now liable to adoption
across the 25 Member States’ and a coalition of NGOs has called for the withdrawal of the text. Some of the
particular features objected to by ILPA include of the general procedure are the right to an interview being
conditional, and the absence of legal aid at early initial stages, non-suspensive (out of country) appeals. A wide
discretion to detain asylum-seekers is introduced and grounds for special, accelerated and inadmissible
procedures are wide, with the consequences of being dealt with by such procedures potentially draconian and
serious, particularly as the basic procedural guarantees are so weak in any event. There is also a plan to adopt
a list of ‘safe countries of origin’ (one of the gateways to these accelerated procedures): this is criticised by
Costello for being beyond the competence transferred to the EU in this field. Perhaps the most worrying recent
development is the current intention in relation to the adoption of this list. It is planned to adopt the Directive
without adopting the list of safe countries of origin simultaneously, postponing the adoption of the list until a later
stage under QMV. It appears that due to lack of agreement and concern by some member states about the
safety of the countries listed (Benin, Botswana, Cap Verde, Ghana, Senegal, Mali, Mauritius, Costa Rica, Chile
and Uruguay) agreement cannot currently be reached so the delay is intended to avoid this by adopting the list
by QMV later.18 Quite apart from the issue of the legality of adopting such a list,19 it is quite alarming that it is
intended to do so in this way; separate from the Directive and deliberately delayed so that qualified majority
voting may be used to overcome the opposition of some Member States.


Refugee Definition
This Directive has now been agreed: and calling it the qualification or definition directive is somewhat
misleading as it also lays down minimum conditions for those granted the statuses which it deals with. This
Directive was contentious as the exact definition of a refugee and the precise conditions of persecution
accepted as giving rise to a Geneva Convention protection claim differed from State to State. Particular groups
have given rise to some difficulties but perhaps the most troublesome issue has been the question of
persecution by ‘non-state’ agents, accepted as a possible ground for a claim under the Convention in some
States but not others.20 The Directive settles this controversy – thankfully in favour of the broader definition –
but includes a concept that protection might be provided by those other than the State. Baldaccini suggests this
latter point is ‘rather alarming, as ‘quasi-state authorities’ are not subjects under international law and are no,
under human rights instruments, accountable for their actions’.21 Other than this the provisions of the Directive
dealing with the refugee definition have not been the subject of the fiercest criticism and in Baldaccini’s words
‘broadly reflects the developing international standards in the interpretation of ‘membership of a particular social
group’ by recognising gender-specific forms of persecution and persecution on the grounds of sexual
orientation’. The Directive also creates a system of subsidiary protection for those at risk of ‘serious harm’ –
namely (a) death penalty or execution, (b) torture or other inhuman or degrading treatment or punishment or (c)
serious and individual threat by reason of indiscriminate violence in a situation of international or internal armed
conflict.   So far, so good; or at least, not-so-bad.      However, the conditions for those granted subsidiary
protection are less generous than those laid down for refugees and the discrimination inherent in this scheme




18
   This is drawn from the draft ILPA response to the Hague Programme prepared by Anneliese Baldaccini.
19
   Highlighted in the earlier analysis earlier by Cathryn Costello.
20
   We will see below the difficulties to which this has given rise under the Dublin Convention later.
21
   Baldaccini, n 12 above.
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seems a little worrying. The Directive also has a section on cessation of22 and exclusion from status23 (following
the Convention grounds).       But it seems to go further and includes possible revocation where ‘there are
reasonable grounds for regarding the refugee as a danger to the security of the member state’ or ‘the refugee
having been convicted of a particularly serious crime, constitutes a danger to the community of that member
state’. This is of some concern and as Baldaccini points out is an example of ‘security concerns creeping into
asylum law and undermining refugee protection standards’.


Reception Conditions
The logic behind this measure is to provide minimum standards to those seeking asylum – those specifically
seeking other international protection are excluded (but those making a general claim will be seen as including
application for Geneva Convention status and will thus be included). This, it is thought, will prevent asylum
seekers from moving or travelling to particular destinations on the basis of better treatment in the conditions
they find on arrival.


Particular issues have arisen in relation to detention (Art 7(3): the grounds on which applicants could be
detained were extended in the process of discussing the Directive), education (which may now be provided in
accommodation centres in contrast to the original position of equal terms with own nationals), and labour
market access after one year if the application is still outstanding as long as this delay is not attributable to the
applicant. A number of these issues have been commented on critically by UNCHR.24 Withdrawal of reception
conditions is also provided for, and the UK government insisted on a provision to enable measures like the
controversial section 5525 providing for denial of support (in the context of the Directive, denial of the relevant
minimum reception conditions ) where applications have not been made on entry or as soon as reasonably
practicable thereafter. This was inserted as Article 16(2), and permits refusal of conditions where an asylum-
seeker has ‘failed to demonstrate that the asylum claim was made as soon as reasonably practical after arrival
in that Member State’. Again, UNHCR was critical of this provision.


Dublin II Regulation
The Dublin II Regulation is also of some concern. It is based on two ideas: that of pooling of responsibility and
negative (but not positive) mutual recognition of asylum determinations. As to which State is responsible there
are a number of principles arranged in what might be called a hierarchy. Recognition of a first degree relative of
the applicant as a refugee, then issue of a valid visa to the applicant, followed by entry of the applicant to the EU
through the State, are all relevant criteria by which a State may become responsible.                    A number of
commentators have criticised the Dublin Convention and the adoption of its principles largely unchanged in the
new Regulation.26 One of the difficulties that has been faced is the current disparity in protection systems – with
for example different definitions of recognised persecution giving rise to refugee status in different states and
courts being faced with the dilemma of whether to order return to another Member State which would not
22
   Mainly by voluntary acts of the individual or change of circumstances which remove the basis of the alleged fear of
persecution.
23
   Individuals guilty of crimes against peace, war crimes, crimes against humanity, serious non-political crimes and acts
contrary to the purposes and principles of the United Nations.
24
   Guild, above.
25
   Immigration Asylum and Nationality Act …
26
   See Guild, above. For further analysis, Guild refers to A Hurwitz, ‘The 1990 Dublin Convention: A Comprehensive
Asssessment’ (1999) 11 IJRL 646, U Brandl, ‘Distribution of Asylum-Seeekers in Europe? Dublin II Regulation
Determining the Responsibility for Examining an Asylum Application’ in C Dias Urbano Da Souza The Emergence of a
Euroepean Asylum Policy (Bruylant, Brussels, 2003/forthcoming), G Noll ‘Formalism vs Empiricism. Some Reflections
on the Dublin Convention on the Occasion of Recent European Case-law’ (2000) 70 NIJL 161, and A Nicol and S
Harrison ‘The Law and Practice in the Application of the Dublin Convention in the United Kingdom’ (1999) 1 EJML 465.
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recognise the kind of persecution being alleged by the applicant where this would be recognised in the state
where the application is being made.27 This demonstrates the linkages between the different aspects of the
emerging asylum acquis.


The Dublin II Regulation are also dependent on the identification of asylum-seekers, and the Eurodac system is
supposed to be a critical part of this process. It is still early stages of the operation of the system, (began
operation in early 2003) but for present purposes it is sufficient to note that data protection and privacy must be
protected and to some it is not evident that these requirements are safeguarded as they could or should be.28


Other Initiatives
There has been periodic discussion of Protection in Regions of Origin, External Processing of Asylum Claims,
Durable Solutions and so on. Few of these have had any real lasting impact in progressing beyond the stage of
discussion, and some of them have been heavily criticised both internally and externally. The impression one
gets from this remains, following Guild’s theme, that certain Member States would be all to willing to deflect
refugees away from their borders as much as possible and avoid a full and inclusive good-faith honouring of
their obligations under international law. At the same time readmission agreements have been prepared, but
this overlaps with issues connected to irregular migration so is best discussed then.


The next stage:
The next stage of the Common European Asylum System is the beginnings of a move towards a common
asylum procedure and a uniform status for those who are granted asylum or subsidiary protection. This was
envisaged already in the Tampere conclusions and the Commission produced a Communication in 2000. The
most recent development beyond the measures discussed above is a Communication in July 2004 is a
Communication discussing the Possibility of a ‘Single Procedure’ – that is one procedure that would apply to
applications for refugee status and other forms of international protection. What is planned next in relation to
this is a ‘one-stop shop action plan’ that will unfold from January 2005.29 It is also clear from the Hague
Programme that evaluation of the first legal instruments will be undertaken as part of the next phase. It will be
imperative to engage, as part of this process in a realistic rights-based and well-informed assessment of the
measures that have been introduced thus far and ensure close monitoring of their implementation on the
ground in Member States legal systems as well as formal transposition. Also, any additional moves in the
direction of further harmonisation or creation of a single procedure must be judged against full and effective
respect for rights under the Geneva Convention and other international obligations. It is also notable that the
Hague Programme also envisages, as part of the next phase of the CEAS, investigation of joint processing of
asylum applications within the EU as well as joint processing of such applications outside EU territory. This has
been controversial in the past and doubtless will remain so.




4       Legal migration and issues related to integration


In terms of legal migration and measures related to the status of third country national migrants within the EU,
progress has been a somewhat slow. However, Directives on Family Reunification,30 and on the legal status of
27
   Such as in the House of Lords case from the UK, ex Parte Adan and Aitseguer discussed by Guild.
28
   Guild, above.
29
   See COM(2004) 503 together with Annexed Staff Working Document SEC(2004) 937.
30
   Directive 2003/86, [2003] OJ L251/12.
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Long Term Resident Third Country Nationals31 have now been agreed.                    These two Directives have been
weakened during their passage and this has made the final versions less effective in protecting the position of
third country nationals and has attracted some criticism.32              In particular, the European Parliament has
challenged certain provisions of the Family Reunification Directive alleging incompatibility with principles of
respect for family life.33 Here, the depth of commitment – of Member States and of the Community Institutions –
to the pursuit of the goals set out in the Tampere conclusions of fair treatment of third country nationals and to
development of rights comparable and as close as possible to those of EU Citizens is at stake.                        While
recognising the important steps forward that these Directives constitute in recognising and improving the
position of significant numbers of legally resident third country nationals, it is disappointing that these ideas of
‘fair treatment’ and rights that are ‘comparable’ seem to have been interpreted rather loosely. Time and again,
categories of individuals have been excluded as the Directives have been developed, making it harder and
harder for individuals to claim the benefit of the rights that have been developed.34 At the same time, the
substantive content of the Directives has also been narrowed steadily, meaning that those who are left within
the personal scope of the Directive find the rights and protection they do obtain watered down and weakened.35


Two Regulations have also been agreed on residence permit formats36 and on social security for third country
nationals.37 On economic migration, there has been very slow progress38 as Member States see this as a core
area of competence touching on vital national interests that they are unwilling to surrender. Member States
have very keen in particular to protect their control over volumes of admissions from outside the EU – although
it should be noted that this concern (and the provision relating to it in the new Constitution which awaits
ratification) only deals with direct migration from third countries. Long term residents covered by the Directive
do have certain rights (although they have been watered down somewhat and are not the same as those of EU
Citizens) and their migration for economic purposes, although not completely unlimited, will be facilitated by the
Directive. Most recently, just this week the Financial Times newspaper in the UK reports39 that the new Justice
and Security Commissioner Franco Frattini is considering schemes to deal with this issue, promising to publish
suggestions early in 2005 and promising an ‘open and transparent debate’ on the management of economic
migration: so it is clearly going to be high on the agenda and something to watch out for during 2005. There is a



31
   Directive 2003/109 [2004] OJ L16/44.
32
   On the Family Reunification Directive, see R Cholewinski ‘Family Reunification and Conditions placed on family
Members: Dismantling a Fundamental Right?’ (2002) 4 EJML 271, see also earlier discussion by P Boeles ‘Directive on
Family Reunification: Are the Dilemmas Resolved?’ (2001) 3 EJML 61, and for further more general discussion on Family
Reunification in Community law see G Barret ‘Family Matters: European Community Law and Third Country National
Family Members’ and S Peers ‘Family Reunion and Community Law’ in N Walker (ed) Europe’s Area of Freedom,
Security and Justice (OUP 2004). On the Long Term Resident Third Country Nationals Directive, see S Peers
‘Implementing Equality? The Directive on Long Term Resident Third Country Nationals’ (2004) 29(4) ELRev 437.
33
   Case C-543/03, pending.
34
   See for example, the restrictions on those covered by the Family Reunification Directive from the first proposal in 1999
to the final version. The final version now only applies to those who have a reasonable prospect of obtaining permanent
residence.
35
   For example, the period of time required to qualify for family reunification, the age limits of children in the Family
Reunification Directive, and the restriction of family reunification rights to the ‘traditional’ married couple: which almost
certainly excludes same-sex marriages, and makes no mention of civil partnerships and cohabitants other that to say that
Member States may permit entry. This hits couples consisting of two third country nationals hardest, both partners being
without the free movement rights conferred by EU Citizenship, and the position will only be addressed in small part by the
Long Term Resident’s Directive. For further detailed discussion of partnership rights particularly in the context of
migration rights, see H Toner Partnership Rights, Free Movement and EU Law (Hart 2004 forthcoming).
36
   Regulation 1030/2002 [2002] OJ L 157/1.
37
   Regulation 859/2003 [2003] OJ L 124/1.
38
   Commission Proposal COM(2001) 386 : this has not been adopted, talks have been suspended.
39
   S Laitner, G Parker ‘Brussels Looks at ‘Green Cards’ for Migrants’.
                                                            9
pending Green paper on economic migration40 which will no doubt expand on this and lay out details of Frattini’s
plans, but this is not yet available although due any day now.


Another related issue that has been tackled is that of admission of those who are less strictly speaking
economically active, rather what one might call intellectually active. Increasingly the EU is aiming to place itself
at the forefront of a dynamic, competitive, knowledge-driven world economy: to this end admission of those who
come to study and research come into play to further this aim, and some progress has been made on this. A
Directive has been proposed in 200241 laying down conditions of entry and residence of third country nationals
for the purposes of study, vocational training, or voluntary service. This has slowly been winding its way
through the decision-making process and has just very recently been agreed (Political agreement reached in
March, formal adoption in most recent December 2004 JHA council). Further action is being proposed for
researchers, and on this theme the Commission has recently in March this year presented a Communication42
with Proposals for a Directive and two proposals for Recommendations. Again this is something that will be part
of the agenda for discussions in the next few years, and these Proposals may well be subject to some
negotiation and change before completion.


I will leave aside for now any extensive discussion of integration policy as such, but it is worth noting in passing
that this is now being discussed in the EU context. Aside from the legal measures on long term resident TCNs
and family reunification, the most recent developments worth mentioning perhaps being the emphasis on
integration (including a conference under the Dutch presidency, and                   publication of a Handboook on
Integration), and of course the two Directives combating race discrimination and discrimination in employment
on other grounds. Perhaps though I may be permitted a somewhat mildly sceptical remark about what the EU
has to add on integration policy?: other than to wonder why it is so important for third country nationals to
integrate when EU Citizens are not required to, and to suggest that the main focus might better be full and fair
equal treatment of third country nationals.         It is clear however that this will be a continuing issue and is
mentioned in the Hague Programme together with a suggested set of principles.                        These suggest that
integration:
    Is a continuous two-way process involving both legally residing third-country nationals and the host society.
    Includes but goes beyond, anti-discrimination policy.
    Implies respect for the basic values of the European Union and fundamental human rights.
    Requires basic skills for participation in society.
    Relies on frequent interaction and intercultural dialogue between all members of society within common
     forms and activities in order to improve mutual understanding.
    Extends to a variety of policy areas, including employment and education.




40
   Thanks to Steve Peers for drawing my attention to this, even if only to note that it was not yet publicly available on the
internet!
41
   COM(2002) 548.
42
   COM(2004) 178.
                                                           10
5                                                                                                  Visas           and
         43
borders
A Regulation setting up Visa List dates from 2001,44 regulation on freedom to travel for those with long term
visas date from 2001.45      A Visa Information System is envisaged for the exchange of visa data between
member states in order to ‘improve the administration of the common visa policy, and contribute towards
internal security, to facilitate checks at external borders and within the territory of the Member States and to fight
against fraud’.   A decision establishing a mandate to develop this system dates from 2004 and a decision
establishing a Border Agency (to become operational in 2005) again dates from this year – both of these
therefore are in early stages of development. Also in May 2004 a Draft Regulation on a code for border
crossing was proposed.46 Again time and space prevent extensive discussion of these matters here, but again
the same issues of securitisation, prevention and control of migration are uppermost in the development of
these measures. It is however worth mentioning one document in particular (unofficial, of course) prepared to
balance and counter this agenda with one based on guarantees of rights and safeguards; the Meijers
Committee (Standing Committee of experts on international immigration, refugee and criminal law) prepared a
draft Directive for consideration.47




6                                                                                                  Combating
irregular/illegal migration48
There have been a steady stream of policy papers and action plans, 49 as irregular migration (although the EC
Institutions persist in using the pejorative term ‘illegal’ rather than irregular) has moved up towards, and indeed
stayed near the top of the agenda.          Successive European Council meetings have emphasised in their
conclusions the importance of combating irregular migration. A number of legal measures have been agreed
here. Amongst others we find: Mutual recognition of Expulsion decisions,50 Carrier Sanctions,51 a framework
decision on trafficking in persons,52 Directive and Framework Decision on facilitation of illegal entry and



43
   See generally F Pastore ‘Visas, Borders, Immigration: Formation, Structure and Current Evolution of the EU Entry
Control System’ in N Walker (ed) ‘Europe’s Area of Freedom, Security and Justice’ (OUP Oxford 2004).
44
   Reg 539/2001. Also Reg 453/2003.
45
   Reg 1091/2001.
46
    COM (2004) 391 Proposal for a Council Regulation establishing a Community Code on the Rules Governing the
Movement of Persons.
47
   Draft for a Directive on Minimum Guarantees for Individual Freedom, Security and Justice in Relation to Decisions
Regarding Movement of Persons in Border Control and Movement of Persons (P Boeles et al Utrecht 2004). Available
from www.commissie-meijers.nl).
48
   See in general on irregular migration B Bogusz et al (eds) Irregular Migration and Human Rights (Nijhoff 2004) and on
the EU aspects in particular the contributions to this volume by R Cholowinski ‘European Union Policy on Irregular
Migration’ and by S Peers ‘Irregular Immigration and External Relations’.
49
   Since 2001, amongst others COM(2001) 672 Commission Communication On a Common Policy on Illegal Immigration,
COM(2002) 175 Commission Green Paper on A Community Return Policy on Illegal Residents, Proposal for a
Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the European Union [2002] OJ
C142/23, COM(2002) 564 Commission Communication on a Community Return Policy on Illegal Residents, Council doc
14673/02 Proposal for a Return Action Programme, COM(2003)323 Commission Communication on the Development of
a Common Policy on Illegal Immigration, Smuggling and Trafficking of Human Beings, External Borders and the Return
of Illegal Residents, Council Document 6023 Road Map for the Follow-up to the Conclusions of the European Council in
Seville, COM(2004) 412 Commission Communication, Study on the Links Between Legal and Illegal Migration, and SEC
(2004) 1349 Commission Staff Working Paper : Annual Report on the Development of a Common Policy on Illegal
Immigration, Smuggling and Trafficking of Human Beings, External Borders, and the Return of Illegal Residents.
50
   Dir 2001/40, [2001] OJ L 149/34.
51
   Directive 2001/51, [2001] OJ L 187/45.
52
   [2002] OJ L203/1
                                                           11
residence,53 and Directive on residence permits for victims of trafficking.54 Awaiting future development are a
pilot programme on financing of expulsions/returns, and a Directive may be forthcoming on minimum standards
for returns. As well as all this we have a range of readmission agreements – with Hong Kong, Macao, Sri
Lanka, Albania (pending?), and negotiations with Russia, Pakistan, Morocco, Ukraine, Algeria, Turkey, China.55
Moving from a simple catalogue of the measures and action plans to a brief evaluation and assessment of the
measures, again the securitisation, control, and the marginalisation of migrants’ rights emerge. Cholewinksi56
suggests that ‘the legally binding instruments concerning migration adopted since the entry into force of the
Amsterdam Treaty contain very little human rights content apart from a few selective and cursory references in
some of these measures to their conformity with the 1951 Geneva Convention … Most measures are
concerned with preventing migrants entering without authorisation, assisting with the expulsion of irregular
migrants from the States concerned and EU territory as a whole, and imposing sanctions on those who facilitate
irregular migration’. There are also links with visa policy – targetting those countries thought to be sources of
irregular migration for imposition of visa requirements. As Cholewinski points out57 there are also links also with
external policy and development assistance in particular, with at least political weight being used to ensure
development of co-operation in the prevention of irregular migration and of readmission agreements, even if
development aid is not specifically conditional and dependent on sufficient co-operation in these matters.




7                                                                                               The
Commission’s assessment and its critique


The Commission published its assessment of progress in June 2004 in its Communication.58                  Although
recognising the difficulties that had been faced in implementing the competences introduced at Amsterdam,
(‘Important Achievements in a Difficult Environment’) it also took a relatively optimistic view of the situation,
stating that ‘progress to date has been undeniable and tangible’. A slightly less optimistic view of progress has
been provided by ILPA in its response to this Communication. ILPA’s response criticises the Commission’s
assessment for lacking substance, for overlooking defects in the process and the measures agreed, and for
seeking too readily to pass the responsibility for many of the problems to the Council and the Member States
when in truth the Commission should shoulder more of the responsibility. Other NGO’s such as Amnesty,
Statewatch, ECRE in their responses echo similar concerns particularly about the treatment of asylum seekers.




8                                              The Hague programme and the Constitutional Treaty: will the
next five years be any better than the first?


The Hague Programme59



53
   [2002] OJ L328.
54
   Dir 2004/81, [2004] OJ L261/19.
55
   Again I am grateful to the legislative update prepared by Steve Peers for ILPA for this information.
56
   Above n 43, at p 169.
57
   Above n 43 at p 177. See also more generally on the links with external policy Peers, above n 43.
58
   See n 1 above.
59
    Draft Multiannual Programme: Council Document 13302/04, further draft Document 13393/04. Final document
annexed to Presidency Conclusions after adoption at meeting of 4/5November 2004. See also the timetable based on the
Hague Programme compiled by Statewatch.
                                                             12
This sets out a programme for the next five years, although it is clear that the agenda will continue to develop
from here (an action plan is envisaged in 2005). General principles begin with ‘a pragmatic approach’ building
on the work arising form the Tampere programme together with concepts of subsidiarity, solidarity,
proportionality and respect for Member States legal systems.        Protection of fundamental rights is another
general principle as is implementation and evaluation of the measures introduced under the Tampere
programme. As to specifics of migration and asylum policy, ‘a comprehensive approach involving all stages of
migration with respect to the root causes of migration, entry, and admission policies and integration and return
policies’ is envisaged.



The programme includes work on:
     Common Asylum system, second phase: common procedure and uniform status for asylum or subsidiary
      protection by 2010. Based on full and inclusive application of the Genecv convention and evaluation of
      existing measures.
     Economic Migration – policy plan only, volumes of admissions remaining for the member states. Reducing
      the informal economy which is portrayed as a ‘pull factor’ is also urged on Member States.
     European framework to ensure the successful integration of migrants.
     Continued development of policy to combat illegal/irregular migration – including partnerships with third
      countries and particular returns policy as part of the external dimension of migration and asylum. (Return
      fund, a preparatory phase and establishment by 2007, appointment of special representative for common
      readmission policy are mentioned).
     A fund for the management of external borders (by 2006).
     Shengen Information System operational in 2007. Visa information system operational swiftly.
     Common visa rules, increasing use of biometrics and information systems (including maximising
      effectiveness and interoperability of these systems), as well as cross-border exchange of law-enforcement
      information.


Again ILPA has produced an assessment of the new Hague Programme adopted by the Council in 2004.60 It
will be critical to ensure the proper monitoring and transposition of the measures that have been agreed place,
to make human-rights compliance a central part of this monitoring process, and to continue to contest the
relentless securitisation and control agenda.


Decision-making changes to come
As we have seen, it can hardly be denied that the combination of unanimity of decision-making in the Council
and consultation with the Parliament has had noticeable effects on the process of decision-making and the
outcomes of deliberations. Decision-making changes are however already underway in several respects. First,
we must recognise that in 2004 the entire landscape of EU decision-making changed quite radically with the
accession of ten new member states. These have extended the EU’s border eastwards significantly and will
bring a new chapter in this story. As well as this however, the changes run deeper than simply bringing more
discussants to the table. The programme envisaged from the very beginning a first phase of five years during
which unanimous voting in the Council and consultation of the European Parliament would be the normal mode
of decision-making, followed by changes as the first phase of the programme was completed and the second


60
     Above n1.
                                                       13
phase was begun.61 This transition has already begun with a draft decision already being discussed to move
decision making in all areas except legal migration (63(3)a and 4) to co-decision.62 It is not quite clear why the
Council thought that this area should continue to be governed by the original procedure of unanimity and
consultation of the Parliament. As alluded to in this text however, the Constitutional Treaty would if agreed bring
yet further changes, further consolidating the normal decision-making procedure as qualified majority voting
together with co-decision with the European Parliament throughout the EU’s activities in building its immigration
asylum and borders/visa policy.63 The only exception to this will be the continued exclusion of competence over
volumes of economic immigration. This will mean that measures will now be taken in this manner, currently
excluded from the transitional arrangements foreseen already in Amsterdam.


And more involvement for the Court of Justice
Another important aspect of the future development of EU migration law and policy will be the regularisation of
the jurisdiction of the Court of Justice. The first reference to the Court64 was declared inadmissible on the
grounds that there was a judicial remedy against the court’s decision. The normalisation of this area and full
jurisdiction of the Court of Justice over such important matters, including the safeguarding of fundamental
rights, must be a priority. It is certainly to be welcomed that the new Draft Constitution moves in this direction,
normalising the jurisdiction of the Court in the areas of immigration and asylum.


The scope of competence adjusted under the new Constitutional Treaty
The Constitutional Treaty’s future, as we are all aware, is still subject to a considerable degree of uncertainty,
with ratification by 25 states necessary. At this early stage the outcome remains distinctly uncertain. However,
a few words may be said. I have noted above the changed decision-making procedure and jurisdiction of the
Court of Justice and these are the most high-profile and fundamental changes that will affect immigration and
asylum law. However, some adjustments are indeed made and principles laid down in the Constitution more
fully than in the previous Treaty texts and these are worth mentioning. In particular common to all three Articles
(Borders/visas, asylum/refugees and immigration) is the setting out of principles for policy development in the
first part of the Treaty Articles followed by specific competences to adopt laws or framework laws.


On visas and borders (III-266). A ‘gradual introduction of an integrated system of external border management’
is a new policy objective. Broader powers are granted over visa policy and freedom to travel. The competence
of member states in respect of demarcation of their borders is specifically respected, this being excluded in
paragraph 3 of this article.


On asylum, (III-265) the competences are not fundamentally changed but the reference to minimum rules goes
and the language is now of a common European Asylum System is used, and it is stated that the policy must be
in accordance with the Geneva Convention and other relevant treaties: Competences include Uniform status
and Common rules for the granting and withdrawing of uniform statuses of asylum and subsidiary protection, a
common system of temporary protection, criteria and mechanisms for determining responsibility for considering
asylum or subsidiary protection claims, standards for reception of asylum seekers and those seeking subsidiary


61
   See the discussion above: some aspects move automatically on 1st May from unanimity and consultation, others must
await the unanimous decision of the Council.
62
   A Draft Decision has been published and is under discussion, November 2004: Council Documents 15130/04 and
14497/04.
63
   Except emergency measures in the case of mass influx: parliament will be consulted.
64
   Order of 31 March 2004 in Case C-51/03, Georgescu.
                                                          14
protection and ‘partnership and co-operation with third countries for the purpose of managing inflows of people
applying for asylum or subsidiary protection’.


On immigration (III-267) the policy aims are efficient management of migration flows, fair treatment of resident
third country nationals, and prevention of illegal immigration and trafficking. Conditions of entry and residence
(including family reunification) and terms of freedom of movement and residence in other member states, illegal
residence and combating trafficking are specific competences. Readmission agreements are covered by 267
(3) and a new competence in 267(4) for incentive and support for promoting integration of third country
nationals but excluding harmonisation. Important for allaying the fears of some Member States is the provision
in 267(5) that this ‘does not affect the right of Member States to determine volumes of admission of third country
nationals coming from third countries to their territory in order to seek work, whether self-employed or
employed’.


And the Charter of Fundamental Rights
A final few words on the emerging agenda must go to the Charter of Fundamental Rights. It is heartening to
see the Court of Justice developing (on the whole) relatively generous jurisprudence in relation to the
fundamental rights in relation to family reunification, drawing increasingly on the ECHR concept of respect for
family and private life. And the development of the EU’s own Charter of Fundamental Rights certainly has the
potential to be a significant milestone in the recognition and further development of rights protection in the EU.
Nonetheless, its immediate effect has been blunted and its real utility diminished by the failure to agree binding
legal status when the Charter was initially developed.         Its inclusion (although with a possibly confusing
distinction between rights and principles in terms of justiciability) in the Constitutional Treaty may yet prove to be
a crucial tool in the armoury of those concerned with rights protection in relation to EU migration law. This,
together with the possibility of essentially normalised jurisdiction of the Court of Justice, holds out some hope for
stemming the worst of the effects of the legislation that has thus far been adopted and now awaits full
implementation when (or if) the Constitution as it stands now is ratified and comes into force.




CONCLUSIONS


This paper has sought to chart the major issues that have arisen during the first five years of the development
of European Community migration and asylum law since 1999. It has been seen that although indeed a
significant amount of progress has been made, a number of problems have also arisen. These are partly
inherent in the process of seeking agreement on the details of such difficult and highly politicised issues,
however strong may be the case in general terms for some Community co-operation in these matters.
Nonetheless, this should not cause us to overlook the degree to which these difficulties have been exacerbated
by the lack of democratic participation in the legislative process. Nor should it become an excuse complacently
produced in response to real substantive criticisms that some of the measures agreed arguably breach
fundamental rights and international obligations to which the Member States are signatories and to which the
EU declares itself publicly to be committed.      Some progress has indeed been made, and it has been an
intensely busy and demanding time for anyone involved in watching, monitoring and commenting on these
developments as well as for the JHA (now FSJ) officials. However, much still remains to be done. Tempting
though it may be at times to give up in despair at the problematic nature of the decision-making process, and
the apparent disregard for fundamental rights in some of the measures, this would be a mistake. Voices from

                                                        15
the academy and from NGOs must continue to be heard in the next stage of the process. Returning to
Neissen’s comment about the negative perception of migration and migration management becoming migration
crisis management, this kind of serious dialogue and engagement at all levels – local, national, and now
European – may be something of a hard road to travel, but it is the only way to proceed in such a situation.




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