Select Committee on European Union Tenth Report

CHAPTER 5: Migration

25.  Perhaps the slowest moving areas of EU legislative action post-Tampere have been legal migration and the rights of third-country nationals. Member States opted to limit their action on legal migration to the development of best practices and benchmarks, while legally binding measures granting rights to third country nationals were either substantially watered down (such as the Directive on the status of third country nationals)[51] or totally blocked in the Council (such as the draft Directive on the entry and residence of third country nationals for the purpose of paid employment). This stance amply illustrates the Commission's remark that the Union has so far failed to produce a common concept of admission for economic purposes[52] and is in sharp contrast with the plethora of enforcement measures aimed at combating illegal immigration that have been adopted.

26.  This pattern is largely reflected in the Hague Programme. The European Council emphasises the positive role that legal migration can play in the EU, but notes that determining volumes of admission of labour migrants is a matter for Member States. This is also specifically reflected in the Constitutional Treaty.[53] As regards third country nationals, the emphasis is placed not so much on their legal rights but on their integrationthis is to be achieved by co-ordination of national policies rather than legislation. The Commission is invited to present a "policy paper" on legal migration in 2005.[54] On the other hand, large sections of the Programme are devoted to border controls (see Chapter 6 below) and maximising controls on third country—and EU—nationals through the insertion of biometrics in identity documents and enhancing the effectiveness and interoperability of databases such as the Visa Information System (VIS), the second generation Schengen Information System (SIS II) and Eurodac. These controls are also considered important for crime control and counter-terrorism purposes.

27.  The Hague Programme's policy steer on migration was criticised by a number of witnesses. ILPA regretted the very low priority given to measures on legal migration and argued that "the fight against illegal immigration" was once more to be conducted without any concerted EU efforts to address the lawful admission of third country nationals for employment.[55] ILPA drew attention to the threats to the human rights of third country nationals that might be posed by enforcement measures, and criticised the association in the Hague Programme of irregular migration with crime and terrorism.[56] These concerns were shared by Professor Guild, who noted that there was no common definition in EU law of illegal immigration or of an irregular migrant, which in her view made illegal immigration "a phantom ill".[57] Professor Guild added that this failing was compounded by the preventive approach towards countering illegal immigration—since "before an individual can be an illegal immigrant he or she must find himself within a state which has laws which define his or her presence as illegal".[58] We raised this point with the Minister during her oral evidence but did not receive a clear-cut response.[59] In our Report on a common EU policy on illegal immigration, we stressed that it is important to recognise that the term "illegal immigrant" covers people in a very wide range of different situations.[60]

28.  We share the view of our witnesses that effective EU action to counter irregular migration is hard to achieve without a common EU policy on legal migration and the admission of third country nationals for paid employment. We welcome the invitation by the European Council to the Commission to prepare a policy paper on legal migration, and urge Member States to examine the issue as a matter of priority.

29.  EU Member States have recently focused on the issue of integration of third country nationals in their territory. The Hague Programme stresses the need to prevent the isolation of certain groups and calls for the creation of equal opportunities. The Council has already produced a series of integration guidelines for Member States and we welcome this. But action in the field will succeed, and equal opportunities will be created, only if third country nationals enjoy certain rights in their host Member State. We urge Member States to revisit the issue of the rights of legally resident third country nationals.

30.  The Hague Programme proposes a raft of measures involving controls on third country nationals (and in some cases EU nationals) through the use of central databases and the introduction of identification mechanisms based on new technologies including biometrics. The Council has already adopted a Regulation introducing biometrics in EU passports, and proposals are on the table for the use of biometrics in Schengen visas and residence permits. These measures may ensure greater efficiency in the identification of persons, but they also have potentially enormous implications for privacy and data protection. We urge Member States to take these considerations fully into account when negotiating such measures and to give public opinion, and national parliaments, enough time for meaningful scrutiny and debate.

51   On the Commission proposal on this Directive see our Report The Legal status of long-term resident third-country nationals, 5th Report, Session 2001-02, HL Paper 33. Back

52   Communication on the results of the Tampere programme and future guidelines, staff working paper (SEC (2004) 680, p.17). Back

53   Article III-267(5) states that the development of a common EU immigration policy will 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 employed or self-employed. Back

54   It recently produced a Green Paper on economic migration (COM (2004) 811 final, 11 January 2005). Sub-Committee F (Home Affairs) has recently launched a separate inquiry into the issues raised in it. Back

55   pp 37-38. Back

56   pp 36-37. Back

57   p 29. Back

58   IbidBack

59   QQ 18-19. Back

60   37th Report, Session 2001-02, HL Paper 187, paragraph 19. Back

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