Documents considered by the Committee on 28 October 2015 - European Scrutiny Contents

4 European Agenda on Migration

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; recommended for debate on the floor of the House (decision reported 21 July); drawn to the attention of the Home Affairs Committee and the International Development Committee
Document details(a) Commission Communication: A European Agenda on Migration (b) Commission Communication: EU Action Plan against migrant smuggling (2015-20)
Legal base(Both) —
DepartmentHome Office
Document Numbers(a) (36877), 8961/15, COM(15) 240

(b) (36920), 9345/15, COM(15) 285

Summary and Committee's conclusions

4.1 In May, the Commission published a Communication, A European Agenda on Migration — document (a) — proposing a series of actions to address the immediate humanitarian crisis in the Mediterranean and a range of longer-term measures to lay the foundations for a "fair, robust and realistic" EU migration policy. It was accompanied by a further Communication, an EU Action Plan against migrant smuggling — document (b) —setting out practical measures to strengthen the EU's response to the criminal gangs involved in smuggling vulnerable migrants to the EU. The measures envisaged include enhanced cooperation between judicial and law enforcement authorities, better gathering and sharing of information, greater awareness of the risks associated with smuggling, and stronger cooperation with third countries of origin and transit.[ 25] The Action Plan fleshes out a number of actions included in the European Agenda on Migration and in a further Commission Communication proposing A European Agenda on Security.[ 26]

4.2 The Minister for Immigration (James Brokenshire) broadly endorsed the Commission's proposals to improve management of the EU's external borders, intensify cooperation with countries of origin and transit to address the root causes of migration, take further action against the criminal networks involved in the smuggling of migrants, and enhance EU efforts to tackle illegal migration. He considered, nevertheless, that the Commission Communications failed to "present the correct set of policies to address the problems that Europe is currently facing in the Mediterranean and from other migratory pressures".[ 27] In particular, he made clear that the Government opposed proposals to relocate individuals in clear need of international protection from frontline Member States and to establish "EU quotas" for the resettlement of refugees from third countries.

4.3 We considered that the information contained in the Minister's Explanatory Memorandum was thin on substance, given the scale of the challenge facing the EU. We suggested that Members across the House would wish to question the Government on its policy approach to the crisis in the Mediterranean, the contribution made by the UK to existing EU efforts, and the way in which the commitment to "the principle of solidarity and fair sharing of responsibility" enshrined in the EU Treaties should be interpreted and applied.[ 28] We therefore recommended both Communications for debate on the floor of the House and asked the Government, ahead of the debate, to respond to a number of questions set out in our Second Report, agreed on 21 July. We reproduce in this chapter the questions we asked and the Minister's response.

4.4 We welcome the Minister's comprehensive response, albeit after a delay of nearly three months. Navigating the flow of documents emanating from the Commission presents challenges for us, as well as the Government, with the information we receive often having been superseded by subsequent events. The pace of developments only reinforces the case for a debate on the floor of the House — our initial debate recommendation was made on 21 July — to enable Members across the House to question the Government on its approach to the crisis in the Mediterranean.

4.5 We make the following observations on the Minister's letter which may help to inform the debate. First, the Minister acknowledges criticism of the Dublin Regulation but does not accept that it is, of itself, unfair, underlining the need for a procedure to identify a single Member State responsible for examining an asylum claim and where, justified, providing refuge. Whilst there is an evident benefit in establishing clear lines of responsibility, there is a risk, too, that where there are mass influxes frontline Member States may have little incentive to fulfil their Dublin obligations. Seen in this light, the EU policy of relocating from frontline Member States a proportion of individuals in need of international protection may be a vital tool in preserving the Dublin system.

4.6 Second, the Minister highlights the importance of "break[ing] the economic model that encourages criminals so callously to put people in harm's way at sea". He will recall that one element of the European Agenda on Migration is to establish "legal pathways" to enter the EU, thereby reducing reliance on criminal networks and the risk of exploitation. Based on the Minister's own figures, more than 175,000 of those crossing the Mediterranean from January to September this year would appear to have a claim for protection based on their nationality (Syrians and Eritreans). So far, Member States have collectively agreed to resettle 22,504 individuals from outside the EU who are in clear need of international protection in 2015,[ 29] to be supplemented by the resettlement in the UK of a further 20,000 refugees from camps bordering Syria over the next five years. Based on these figures, it seems clear that resettlement alone cannot meet current needs for international protection. Nor is the longer-term objective of ensuring stability and development in migrants' home countries likely to stem migratory flows in the near future. The debate may therefore wish to consider whether it is possible to establish safe and legal routes to the EU for those with clear protection needs, without creating new "pull factors".

4.7 We urge the Government to bring these documents, and the others we have recommended to be debated at the same time, to the floor of the House at the earliest opportunity. We draw this chapter to the attention of the Home Affairs Committee and the International Development Committee.

Full details of the documents: (a) Commission Communication: A European Agenda on Migration: (36877), 8961/15, COM(15) 240; (b) Commission Communication: EU Action Plan against migrant smuggling (2015-20): (36920), 9345/15, COM(15) 285.


4.8 Since publishing these Communications in May, there has been a proliferation of measures at EU level seeking to address different aspects of the crisis in the Mediterranean. These are summarised in our earlier Reports listed at the end of this chapter. The numbers crossing the Mediterranean during 2015 illustrate the magnitude of the challenge facing the EU. The latest estimates indicate that there have been more than 650,000 arrivals by sea and over 3,000 documented deaths.[ 30] EU leaders agreed in June that the EU should focus its response on three key areas:

·  relocation and resettlement of individuals in clear need of international protection;

·  return, readmission and reintegration of irregular migrants who do not (or no longer) have a right to remain in the territory of an EU Member State; and

·  cooperation with countries of origin and transit.[ 31]

The Minister's letter of 12 October 2015

4.9 The Minister apologises for the delay in responding to our Second Report, published on 21 July, and in submitting some Explanatory Memoranda (EMs) on EU documents relating to the migration crisis. He continues:

    "The rapid pace of development of the migration crisis has significantly changed the nature of the dossiers produced by the European Commission and forced Member States to review their positions across a range of migration issues. This has inevitably meant that the dossiers have quickly become out of date before an accurate response to the ESC [European Scrutiny Committee] could be provided. Although late, the content of the EMs and letters provided to the ESC has been as up-to-date as possible at the time of sending."

4.10 In our Second Report, we noted the Government's view that the Commission "has failed to present the correct set of policies to address the immediate crisis" but added that "the Minister's Explanatory Memorandum is disappointingly thin on substance, given the undoubted scale of the problem, and the detail contained in both Commission Communications". The Minister's response misconstrues our criticism, suggesting that it was directed at the Communications themselves, rather than his Explanatory Memorandum. In this light, he purports to agree that the Commission failed to "detail a response that would deal with the scale of the problem" and had little to say "on the immediate situation or how to deal with push factor issues". He continues:

    "Yet the crisis demands a wider response and in the Government's view we need to treat the causes of this problem, not just deal with its consequences. That means helping the countries where these people come from to reduce the push factors by stepping up efforts to address conflict and instability as key drivers of migration, including in Syria. It also means working with countries of origin and transit to provide sufficient regional protection for those who need it, to facilitate the returns of those who do not, and to tackle the people smugglers and traffickers who exploit migrants. Therefore the Home Secretary met with the French and German Interior Ministers in Paris on 29 August and jointly called on the Luxembourg Presidency of the European Union to convene the extraordinary meeting of the Justice and Home Affairs (JHA) Council. That meeting took place on 14 September in Brussels. A further extraordinary meeting of the JHA Council was held on 22 September. The Home Secretary attended both meetings on behalf of the United Kingdom and letters reporting the outcome of the Councils, including key decisions and interventions, have been sent to both Houses.

    "Additionally, on 9 September, the Commission published a new and extensive Migration Package of Communications and legislative proposals to address the immediate crisis as well as the longer term push factors. The package is not confined to the Central Mediterranean. We deposited seven Explanatory Memoranda on 30 September, and I understand that my HM Treasury colleagues are preparing further EMs on the associated EU budgetary changes.

    "Within that context, the two Communications published in May 2015 have, to some degree, been superseded by events. The Migration package published on 9 September included relocation from Italy and Greece as well as both mandatory and voluntary resettlement proposals. I believe that the set of EMs deposited on 30 September explain the widened EU response and provide the substance you have been seeking."

4.11 The following paragraphs set out the questions (in bold) raised in our Second Report, followed by the Minister's response.

4.12 Do the Frontex-coordinated Operations Triton and Poseidon have a search and rescue capacity equal to that of the now defunct Mare Nostrum operation in the Mediterranean?

    "A review of the multitude of EU operations in the Mediterranean forms a key component of the Migration package published on 9 September. I refer you to the detail contained in the EMs. The practical reality is that the assets now available for search and rescue will be greater than under Mare Nostrum. As well as the Frontex operations, and passing shipping, military vessels involved in the EU mission to target the human smugglers are also available to respond to those in distress."

4.13 What contribution is the UK making to Operations Trident and Poseidon and on what terms? In particular, what obligations does the UK have towards migrants rescued by UK vessels and what action is the UK able to take against smugglers or traffickers apprehended at the same time?

    "The UK has significantly increased its operational support to Frontex operations in the Mediterranean. UK assets, including Royal Navy and Border Force vessels, have rescued over 7,500 people so far. Where a UK vessel takes on board rescued migrants and captured smugglers, they are handed over to the landing State for processing in that State. UK vessels carry on board an Italian law enforcement officer (known as a 'ship rider') to exercise powers of arrest where required.

    "We are constantly reviewing the resources needed across many operations and missions. In 2015, the UK has committed to provide or has provided a range of resources to different operations.

    "To Operation Triton, this includes a national officer to the Frontex International Coordination Centre, ten and a half months' deployment of debriefing experts, and three months' deployment of nationality screening experts to help identify the true nationalities of illegal migrants in order to build capability to return those migrants with no right of stay. The UK also provided two Border Force cutters for approximately four months over the summer to support search and rescue capabilities. The cutters have now been withdrawn to be replaced by ships from other countries which are more suited to winter weather conditions. To Operation Poseidon Sea, this has included four months' deployment of debriefing experts. The UK has also offered to provide an additional 57 months' deployment of debriefing/nationality screening experts to support these Frontex operations.

    "All Member States have expressed support for EUNAVFOR MED, a military Common Security and Defence Policy (CSDP) operation to disrupt the business model of human smuggling and trafficking networks in the Southern Central Mediterranean, and the transition to Phase 2 has been agreed. Phase 1 focused on gathering intelligence on smuggling networks. Phase 2 will include the boarding, search, seizure and diversion on the high seas of vessels suspected of being used for human smuggling or trafficking. Phase 2 will be assisted by the deployment of HMS Richmond. HMS Enterprise has previously been our main contribution to the CSDP mission, accompanied by a Merlin helicopter, and has rescued over 450 migrants."

4.14 The Government believes that "any sustainable approach to search and rescue must involve the 'decoupling' from entry into the EU, except where there is a genuine case for asylum". UNHCR data indicate that Syrians and Eritreans are the main nationalities arriving by sea in Italy. What is the Government's estimate of the proportion of migrants crossing the Mediterranean who are in clear need of protection?

    "Comprehensive asylum statistics are not compiled on the basis of how successful claimants arrived in the EU, which makes it very difficult to come up with reliable numbers, particularly as the size and composition of migrant flows can shift dramatically over a relatively short time. However, Frontex is now recording nationality in the region of arrival into the EU. The latest data from Frontex is:
    Route and numbers crossing:
    Jan-Sept 2015
    Top three nationalities
    Central Mediterranean (Libya to Italy):


    Eritrea — 26,573

    Nigeria — 13,061

    Sub-Saharan Africans — 10,363

    Eastern Mediterranean (Turkey to Greece):


    Syria — 150,831

    Afghanistan — 48,087

    Pakistan — 8,658

        "The majority of illegal migrants arriving in Italy through the Central Mediterranean route come from countries where the drivers of emigration tend to be economic rather than a genuine fear of persecution. Asylum applications made by nationals from such countries are generally rejected. The balance further east is different and a higher proportion of migrants accessing the EU by those routes are from countries which result in a higher asylum grant rate.

        "Patterns are shifting all the time and while many refugees make the journey, so too do very many economic migrants. It is imperative that we address that in order to be able to provide the best response for those most in need and deter illegal migration and the life-threatening smuggling that underpins it."

      4.15 Does the Government agree with the Commission's analysis that the asylum system in the European Union is too fragmented and that the operation of the Dublin rules is perceived as being "fundamentally unfair"?

        "It cannot be denied that the Dublin Regulation has its critics in the same way that some perceive a nation's ability to control its borders to be 'fundamentally unfair' to those who seek to migrate without any barriers. The Government does not agree that the Dublin Regulation is, of itself, unfair. What we believe to be unfair are situations where different States have to deal with repeat applications from migrants who have already had their claims rejected in other States or who have decided to move between safe European States for reasons not related to international protection, both things that the Regulation seeks to address. It is also important that the Regulation seeks to identify a single State that is responsible for examining an asylum claim, guaranteeing access to a procedure to assess the claim, which benefits those genuinely in need of protection.

        "In the face of the migration crisis, the system has faced extreme strain. The Commission has tried to address the immediate problems within the system through relocation proposals published on 9 September as part of the Migration package. However, the Commission realises that for the longer term, it must review the Dublin Regulation. They have indicated that proposals will be published in March 2016.

        "In the meantime, for the Dublin Regulation to work as intended, Member States must respect their international obligations to identify, support and protect those who need protecting and remove those who do not. The Government therefore supports close practical co-operation between Member States, coordinated by the European Asylum Support Office, to deliver best practice on the ground."

      4.16 What support has the UK previously given to the relocation of asylum seekers from frontline Member States?

        "Under the previous Labour Government, the UK was one of the Member States who participated in the Maltese pilot project, EUREMA. Under that project ten refugees were relocated to the UK in 2011. It was apparent, however, from EUREMA's subsequent evaluation that refugees were not inclined to go to certain Member States. We firmly believe that intra-EU relocation is difficult and does not tackle the root causes of illegal migratory flows. Our support has therefore been directed towards helping other Member States to strengthen their EU external borders and on addressing the root causes and push factors that cause pressure on Member States' asylum systems."

      4.17 Given the Government's reluctance to support either a mandatory or a voluntary relocation mechanism, how realistic is it to expect other Member States to implement voluntary burden-sharing on the scale envisaged by the Commission?

        "The Government has been clear on numerous occasions that it does not agree with the principle of relocation. It risks some Member States avoiding their responsibilities and distracts from measures, such as provision of practical on the ground support, that could make a real difference in addressing the migration crisis. We have been clear that we will not opt in. However, other Member States have agreed to relocation proposals and they therefore are responsible for implementing them. We do, however, fully support the 'hot spot' proposals and are already providing practical cooperation and resource to ensure that the external border is secured and that arriving migrants are fingerprinted and processed. We are also providing support to frontline Member States to assist them in establishing functioning asylum systems."

      4.18 In April, the European Council called on Member States to "reinforce internal solidarity and responsibility". What other means (besides binding measures) would the Government be willing to support to ensure greater fairness across Member States, or should this be left to each Member State to decide?

        "You will be aware of the Government's view that real solidarity with other European countries is best expressed through practical cooperation to build capability in the asylum and migration systems of Member States struggling to deal with migratory flows. That is why we will continue to provide concrete support through the European Asylum Support Office (EASO). We are also engaged in the EU discussions on specific EU help to Italy and Greece, based on the Migration package published on 9 September and covered in the EMs deposited on 30 September."

      4.19 What is the Government's "blueprint" for handling the immediate crisis in the Mediterranean, and other similar crises in the future?

        "Beyond their impact in Europe, large movements of illegal migrants pose a threat to economic wellbeing and stability in Africa and the Middle East. We have been clear with European partners that we need an ambitious, long term response, tackling causes and criminality, not just reacting to symptoms.

        "The EU needs to focus on more sustainable solutions, and on stemming the flows. We must break the economic model that encourages criminals so callously to put people in harm's way at sea. That requires comprehensive action from the countries of origin right through to the EU itself. The Commission has taken up this message and included a review of EU external action and engagement with third countries as part of the Migration package published on 9 September, and explained in the EMs deposited on 30 September.

        "In particular, the Government believes that the EU needs action in the following four areas:

        — "First, a greater focus on how EU aid money is spent tackling problems at source and in transit countries.

        — "Secondly, an increased focus on fighting organised crime, with better join-up between Member States. The UK has some expertise in this field, but that must be part of a renewed and galvanised response by Europe's law enforcement agencies.

        — "Thirdly, while some migrants need our protection, it is unquestionable that many are illegal economic migrants. We cannot have a situation where illegal economic migrants are able to enter the EU without effective border controls and then stay without consequence. We must break the link between dangerous crossings of the Mediterranean and remaining in the EU. The UK stands ready to help start turning the tide and demonstrate that there can be no value in paying money to criminals and setting out illegally for Europe.

        — "Fourthly, a much stronger coherence between upstream development work and the return of economic migrants. That way, we will offer a real alternative to those who are not entitled to be here, helping them to find their feet and prosper once home. Moreover, if we are to address effectively the situation we currently face, we must also redouble our long term efforts to ensure the stability and development of migrants' home countries.

        "Crucial to all of our efforts on Mediterranean migration is a stable Libya. A political settlement there will do more than anything else to change the environment in which we have to tackle the migratory flows. Whilst recognising a number of significant political and operational challenges, the EU nevertheless needs a clear package of support ready to ensure momentum as soon as a Government of national accord is in place. It is important that any package has a migration as well as security focus, including humanitarian support and border management capacity building. Of course, a resolution of the current situation in Syria would also play a major role in addressing the flows from that country and its neighbourhood."

      4.20 We note that the Communication keeps open the possibility of a wider review of the Dublin rules, in 2016, if the Commission's efforts to secure a fairer distribution of asylum seekers do not succeed. We ask the Minister to explain what consequences such a review might have for UK participation in the Dublin system if the Commission were to propose changes to the current procedures for allocating responsibility for the examination of asylum applications which were less favourable to the UK.

        "As I have already stated, the Commission has indicated it will review the Dublin Regulation and publish proposals in March 2016. The UK's participation in that proposal will be subject to an opt-in decision."

      4.21 We are disappointed that the Government has not consulted more widely on the content of the Communications, given the important role that local authorities, non-governmental organisations and other stakeholders play in addressing the practical consequences of asylum and migration policies. We are equally disappointed that the Minister's Explanatory Memorandum provides no analysis of the fundamental rights impact of the Communications, and simply asserts that they do not raise "any particular issues under the EU Charter of Fundamental Rights".[ 32] This is an implausible assertion, given the nature and scope of some of the actions proposed, for example on the return of irregular migrants and on the identification, capture and destruction of vessels involved in people smuggling. We ask the Minister to provide a more informed analysis of the principal rights that are likely to be engaged by the actions proposed in the Communications.[ 33]

        "In light of the Prime Minister's announcement on 7 September that Britain will resettle 20,000 Syrian refugees over the next five years, Richard Harrington MP has been appointed Parliamentary Under-Secretary of State for Syrian Refugees (jointly at the Home Office, the Department for Communities and Local Government, and the Department for International Development). He will be coordinating and delivering work across government to resettle these refugees in the UK, along with coordinating the provision of government support to Syrian refugees in the region. Work to engage local authorities, non-government organisations and other stakeholders is already under way.

        "On fundamental rights, with regard to the work of Frontex, since the European Agenda was published the Commission has increased the budget for joint operations Triton and Poseidon with the stated aim of reducing the loss of life at sea. The Government does not consider there to be any incompatibility between the Commission's Communications and Article 2 of the EU Charter of Fundamental Rights in this respect.[ 34]

        "With regard to a relocation scheme for those who have sought asylum within the EU, as well as more effective returns processing and agreements to return illegal migrants to their countries of origin, the Government's view is that these proposals are also consistent with the Charter.

        "Article 18 of the Charter provides for the right of asylum with due respect to the Geneva Convention. The proposals contained in the Commission's Communication fully respect the Geneva Convention. Asylum will not be denied to those who are judged to have a genuine asylum claim. The resettlement scheme referred to in the Commission's Communications concerns the allocation around certain EU Member States of those seeking protection and will not alter the criteria for granting of protection or the safeguarding procedures for the determination of claims.

        "Linked to this asylum agenda is an increased focus on returns for illegal migrants. Many asylum claims involve allegations of risk on return, based on the Article 2 right to life and Article 4 freedom from torture or inhuman or degrading treatment. As noted, the Communications do not envisage a process which would in any way infringe upon the Geneva Convention or reduce safeguards for genuine asylum seekers. In respect of cases of an unfounded asylum claim, removals would only occur once that claim had been determined and refused, in accordance with the Convention, ensuring that no breaches of Article 2 or 4 would occur if the individual is repatriated. This would assist in targeting resources to those in genuine need of protection, helping to ensure their fundamental rights are safeguarded."

      4.22 Finally, we questioned the Minister on the timescale for agreeing Council Conclusions on the Communications. He informs us that "Council Conclusions generally endorsing the European Agenda on Migration did not materialise as they were superseded by events".

      Previous Committee Reports

      Second Report HC 342-ii (2015-16), chapter 1 (21 July 2015). Information on other migration-related policy documents and legislative proposals is available in the following Reports: Second Report HC 342-ii (2015-16), chapter 2, chapter 3 and chapter 6 (21 July 2015); Third Report HC 342-iii (2015-16), chapter 8 (9 September 2015); Fifth Report HC 342-v (2015-16), chapter 1, chapter 2, chapter 3 and chapter 32 (14 October 2015); Sixth Report HC 342-vi (2015-16), chapter 8, chapter 9 and chapter 17 (21 October 2015).

      25   The Action Plan specifically addresses the smuggling of migrants. There is a separate EU strategy dealing with the eradication of human trafficking. Whilst the distinction between the two is often not clear-cut, an element of coercion and exploitation is necessary for human trafficking offences, whereas people smuggling is more likely to be based on some degree of voluntary cooperation. Back

      26   (36829), 8293/15. See our First Report HC 342-i (2015-16), chapter 6, (21 July 2015). Back

      27   See para 26 of the Minister's Explanatory Memorandum. Back

      28   See Article 80 TFEU. Back

      29   See the Conclusions on resettlement agreed by the representatives of the Governments of the Member States meeting within the Council on 20 July 2015. Back

      30   See the latest update provided as part of the International Organisation for Migration's Missing Migrants project and the most recent UNHCR figures. Back

      31   See the Conclusions agreed by the European Council on 26 June 2015. Back

      32   See para 20 of the Minister's Explanatory Memorandum. Back

      33   Cabinet Office guidance on the scrutiny of EU documents makes clear that, where a Commission Communication may lead to legislation, the Government should draw attention to fundamental rights issues if they arise, although a detailed analysis is not required at this stage - see para 3.2.5(vi). Back

      34   Article 2 of the EU Charter concerns the right to life. Back

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