Select Committee on Home Affairs Written Evidence

5.  Memorandum submitted by the European Policy Centre

  The process of decision-making on JHA issues at EU level, in particular, the extent to which current difficulties in reaching agreement derive from "third pillar" voting procedure and might be remedied by implementation of the passerelle clauses in previous treaties.

What implications might use of the passerelle have for the UK's legal and judicial systems? What alternative action might improve decision-making? How can transparency and accountability at the European level best be extended?

  1.  With respect to immigration, the process of decision-making is having a significant effect on the coherence of policies agreed at the EU level. While initiatives related to illegal immigration are now decided through qualified majority voting, draft legislation concerning legal immigration to Europe still requires unanimous agreement within the Council of Europe. On the one hand, this is a reflection of Member States' relative enthusiasm for and goals with respect to cooperating on legal versus illegal migration. However, it would be false to suggest that the voting procedure alone is responsible for more advanced cooperation achieved with respect to control of borders and irregular migration.

  2.  The dual nature of the legislative process which has evolved in the area of JHA is in itself skewing EU migration policy towards a more securitised agenda. The Hague Programme—agreed by the Member States themselves—explicitly prioritises a balanced approach to migration management and acknowledges that effective combat of illegal immigration requires the creation of clear and coherent channels for legal migration. However, this is not occurring in any substantive way. This is partly due to the unambitious work programme put forward by the Commission for legal immigration policy. Following the impasse reached with previous proposals (such as COM(2001)387) on common policies for legal economic immigration, the Commission has clearly responded with proposals tailored towards achieving agreement rather than focused on the overall goal of creating a common immigration policy. The Commission will now address highly-skilled workers, seasonal workers, intra-corporate transferees and remunerated transferees through separate directives, with an overarching framework directive covering the rights of migrant workers. Low-skilled migration is not addressed. This piecemeal approach will have long term effects on the creation of a coherent framework of legislation in the future.

  3.  From a legal and policy process perspective, implementing the passerelle clause contained in Article 63(2) of the EC Treaty would improve the coherence and balance of policy making on immigration at the European level. It would also improve the accountability and legitimacy of policies agreed in this area. Currently, there is little consultation with either European or national Parliaments. In such a politically sensitive area, the lack of parliamentary scrutiny has a substantial negative effect on the legitimacy of rules agreed. In order for transparency and accountability to be increased, the co-decision procedure should be extended to cover legal migration.

  4.  However, from a substantive perspective, the requirement of unanimity, and subsequent difficulty in agreeing meaningful legislation in the area of legal immigration, is a symptom of a broader reluctance and diversity of opinion in Europe. Though not as comprehensive as many would have hoped, substantial progress to create common asylum standards was achieved under the Tampere programme, despite the unanimity requirement. However, during the same period, and with the same process, very little was achieved with respect to legal migration. Where significant measures have been passed, such as the long-term residence directive, loopholes are built into the legislation so as to dilute its impact at the national level.

  5.  Implementation of the passerelle clause needs to be accompanied by sufficient political will and commitment towards the creation of a balanced common immigration policy in Europe, in order to have a positive impact on policy-making in this sphere.

How significant is the recent trend towards internal agreements between groups of member states outside the framework of the EU, for instance the Schengen countries, or the Prüm convention?

  6.  In EU policy making, the collaboration of "core states" in particular areas, has been a driving force for EU development in particular policy areas. The initial Schengen agreement is an example of this. This tends to work most effectively when a group of states are working towards goals already articulated within the EU forum, and membership of the group is open to all Member States.

  7.  The use of internal agreements is a reflection of the difficulty of agreeing draft legislation with 15, and now 25, Member States, but also the relative enthusiasm of different Member States with differing priorities. It is a circumvention of unanimity, in as much as that it is far harder to vary the terms of a convention in the European Union once agreed. Member States not involved in drafting the initial agreement merely have the option of whether to join or not. This is a dictatorial, rather than democratic approach, and puts pressure on Member States to be involved from the beginning, that is, if they are invited to join in the first place.

  8.  The drawbacks of using such internal agreements are clear. The inter-governmental approach can create a multi-tiered hierarchy within the EU, with different Member States signed up to different obligations; in essence, the creation of new borders of cooperation within the European Area. Though Schengen largely managed to avoid this outcome, it was by no means certain from the outset. There remains the risk that internal agreements will not be acceptable to all, creating institutional complexity, overlapping competence of different bodies, and confusion regarding the suitable mechanisms for dispute resolution.

  9.  The lack of transparency, generally avoided when agreements are made within the Council, is another serious drawback. The use of internal agreements avoids even the small consultative role the European Parliament has in many Justice and Home Affairs areas. Finally, the European Commission plays an important role in ensuring the compatibility and coherence of law in this area. By circumventing its technical input, internal agreements risk creating separate structures, and a different set of terms and rules, which may cause discrepancies if later incorporated into the main body of European Union law.

  10.  Aside from internal agreements, it is worth noting the use of regional and selective meetings amongst states with similar interests, such as the G6 meetings of the six largest Member States of the EU to discuss Justice and Home Affairs issues. These interest alliances can create blocs of Member States which have decided their priorities before entering the Council meeting, and may serve to polarise discussions still further. Of most concern is the closed door approach that many of these meetings have. The discussions are not widely reported, and the groups are accountable to no one. Those Member States not invited to the table are not consulted, yet may be deeply affected by the policy priorities agreed at the meetings. The lack of transparency evident here goes against the ethos of cooperation created by the establishment of a Justice and Home Affairs policy portfolio.

  11.  The implications for individual Member States depend very much upon whether they are invited to, or choose to be included in, discussions between smaller blocs of Member States. For the United Kingdom, the opt-out clause means that it has already chosen not to automatically participate at the EU level, so this trend has less impact. However, it is of use to the UK to be present at discussions such as G6, to better understand the various interest dynamics in the European Union.

  12.  The implications for EU decision-making are severe, as the creation of these informal and formal groups of Member States is a reestablishment of the inter-governmental approach which has traditionally been used in this area. The use of an internal agreement is also a clear signal to the European Commission that draft legislation on similar topics will not be welcome. Those Member States who choose not to sign up to an internal agreement find themselves in the position of not cooperating in a particular area or creating a "rival" agreement which better suits its needs.

What are the current developments in the area of common border controls and visa arrangements? What implications does the proposed new policy on illegal migration have for the UK and our role in the EU? Will the proposed changes to the short stay visa arrangements in relation to the eastern neighbours of the EU open up new channels for illegal migration further westward in the EU? What are the implications of enlargement for JHA issues, including the impact of labour migration and confidence in new Member States' justice systems?

  13.  Member States cooperation is most developed with respect to border control and visa arrangements. This is for several reasons. First, freedom of movement within the borders of the EU, has added impetus to the desire to strengthen external borders. The EU will only be as strong as its weakest state, a fact which affects all Member States. Second, the technical details of border control and visa arrangements are easier to agree. Unlike legal immigration policy, there are few variances in policy model, and most differences are technical rather than ideological.

  14.  With respect to the new policy priorities in the fight against illegal immigration, as articulated by the European Commission in July 2006, they focus more strongly on consolidation and implementation of already agreed initiatives, than on further extensions of competence at the European level. Cooperation with third countries, primarily those in the Mediterranean, is pursued for the most part through financial instruments already agreed. The deepening of cooperation with these states is an application of the external relations policy already established at the European Union level.

  15.  With respect to integrated management of external borders, the ground work has already been put in place. The key for the future is implementation and operationalisation of those mechanisms. For example, Frontex was established in 2005, and began its first mission in the Mediterranean during the summer of 2006. However, it maintains itself with a skeleton staff and administrative funding, and must find additional financial and human resources for these missions, a situation which compromises its ability to react rapidly to crises. Development of Frontex is less a devolution of competence, than an issue of making that competence work effectively.

  16.  The new initiative put forward, a comprehensive entry-exit system, is a grand scheme, and as the Commission admits, likely to be costly. However, given the recent policy proposals in the UK to tighten exit controls, and create a similar system, it makes intuitive sense to collaborate on such an initiative to ensure compatibility and effectiveness at a European level. It is important to ensure that data protection rules are respected during process of creating information and security systems, so there should be an emphasis on clear and transparent processes for the creation of an entry-exit system.

  17.  Negotiations to create short-stay visa arrangements in the East and Balkans region should have limited negative impact in the UK with respect to illegal immigration, as these arrangements are being negotiated in combination with readmission agreements. These readmission agreements require participating countries to take back not only nationals found to be residing illegally in the European Union, but also all those who travelled through their territory in order to reach the EU. As a result, it offers Member States more scope for implementing returns policies for irregular migrants. While the ethics of this negotiating strategy is questionable, offering facilitated entry only for the externalisation of returns policy, its impact on illegal migration control should be positive for the European Union. However, in the long term, consideration should be given to a realistic legal immigration policy to the European Union, in order to reduce the pressures of migration from neighbouring countries, and fulfil the obligation to create a balanced migration policy as set out by the Hague Programme.

  18.  Research suggests that transitional arrangements are not the sole arbiters of migration flows from new Member States. While Germany (which imposed arrangements) and the UK (which did not) both received high numbers of EU-8 workers in 2004, Austria (which imposed arrangements) and Sweden (which did not) hosted much smaller numbers. The relative strength of the labour market and economy, geographical proximity and perceptions of cultural affinity all play a role. In addition, flows of workers from the new Member States are not endless. These countries are also experiencing demographic decline and as more EU-15 states open up their borders, the UK can expect to see more competition for EU migrant workers in the future.

  19.  Given these factors, labour migration from Romanian and Bulgarian workers would not have such an impact as that stemming from the previous accession process, particularly if other EU countries can be encouraged to waive transitional arrangements. In any case, the UK government's decision to retain transitional arrangements will ensure that the impact of enlargement on the labour market will be limited.

  20.  There is real concern that Bulgaria and Romania have not made sufficient progress reforming their justice systems and on fighting corruption and organised crime. As a result, the European Commission has the possibility to invoke "safeguards" in the Area of Justice and Home Affairs. Should the newest members fail to adequately address JHA-related concerns, the Commission can suspend Member States' obligation to recognise the judgements issued by either country's courts or prosecutors falling under the principle of mutual recognition. However, the details of this mechanism have not yet been agreed. In addition, the UK could follow the Italian example: Italy offered to waive transitional arrangements with Romania limiting the free movement of workers, in return for increased cooperation on organised crime.

Elizabeth Collett

Policy Analyst

22 November 2006

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