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)
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
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. 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.
On the other hand, large sections of the Programme are devoted
to border controls (see Chapter 6 below) and maximising controls
on third countryand EUnationals 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.
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.
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".
Professor Guild added that this failing was compounded by the
preventive approach towards countering illegal immigrationsince
"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".
We raised this point with the Minister during her oral evidence
but did not receive a clear-cut response.
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
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
Communication on the results of the Tampere programme and future
guidelines, staff working paper (SEC (2004) 680, p.17). Back
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
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
pp 37-38. Back
pp 36-37. Back
p 29. Back
QQ 18-19. Back
37th Report, Session 2001-02, HL Paper 187, paragraph 19. Back