5. Memorandum submitted by the European
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
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 Programmeagreed
by the Member States themselvesexplicitly 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
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
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
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
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
22 November 2006