Memorandum by the Immigration Law Practitioners'
Association (ILPA)
THE LISBON
STRATEGY
The Commission has expressed its commitment
to a renewed Lisbon strategy for growth and jobs. It confirms
that this is a major vehicle for "promoting a more prosperous,
environmentally responsible and socially inclusive European Union".
It is important to remember here that migration, both in the form
of intra Member State movement of workers and other economically
active citizens of the Union, and in the form of the admission
of third country nationals for economic activities, is a central
platform of the Lisbon Agenda. Permitting individuals to make
the choice whether to cross EU borders to seek employment elsewhere
in the Union free of state controls in the form of work and residence
permits is a core freedom of the EU. The Member States have long
agreed that this does not create pressure for the reduction of
social protection standards in the Union but rather is compatible
with high social security protections.
Encouraging citizens of the Union to move to
seek better employment prospects in other Member States than that
of their nationality is intended to be accompanied and promoted
by the right of family reunification. However, in the UK (and
a small number of other Member States such as the Netherlands)
the principle of family reunification for citizens of the Union
who move to exercise their free movement rights is under attack.
For instance, the Border and Immigration Agency notified ILPA
in March that it would be introducing DNA testing for family members
of such citizens of the Union where considered appropriate. Further
the UK authorities have advised that they will apply only national
law as regards the issuing of visas outside the EU for family
members to join their EU national principal in the UK. This means
that for instance, many dependent parents and children will be
refused visas even though they are entitled to family reunification
under EU law. If the Lisbon Agenda is to be furthered, citizens
of the Union must be protected against such intrusive and dissuasive
measures which make moving to another Member State unattractive.
The right to move and be joined by third country national family
members in conditions of dignity should be a high priority of
the Commission in its 2008 Agenda.
Further, equality in access to social benefits
when a citizen of the Union is unemployed is fundamental to achieving
the Lisbon Agenda. If workers and the self employed are not protected
against indigence when their jobs or work vanish and before they
are able to find new employment the objective of the Lisbon Agenda
to make best use of human resources in the EU cannot be achieved.
The UK's policy, pursued most vigorously since the admission of
the 2004 Member States, to exclude EU nationals from social benefits
runs counter to the objective and is counterproductive. The Commission's
Policy Strategy 2008 should include as an objective ensuring that
all citizens of the Union get equal access to social benefits
in which ever Member State they find themselves. Any exceptions
to this principle of equality should be very strictly limited.
MANAGING MIGRATION
FLOWS
The Commission indicates that managing migration
flows to the EU is among the objectives of the Strategy. The first
thing which should be remembered is that migration is never a
one way phenomenon: EU citizens also migrate elsewhere in the
world to find better jobs, gain experience and further their private
lives. The treatment of third country nationals in the EU should
reflect the same standards which the EU expects for the treatment
of its nationals when they migrate elsewhere in the world. The
perspective of migration as a positive phenomenon which enhances
prosperity and diversity is true not only for the EU but for the
whole world and includes our citizens of the Union elsewhere as
well as the national of third countries in the EU. Article 151
EC stressed the importance of cultural diversity in the EU as
one of its strengths. This strength should not be forgotten or
limited to within the confines of the EU's external border. The
forthcoming directives on labour migration, conditions of entry
and residence of seasonal workers and remunerated trainees need
to reflect the respect for the individual and equality among workers.
The standard of treatment should be equivalent to those provided
to EU national migrant workers providing a high level of security
of residence, employment and social protection. Differentiating
between EU nationals and third country nationals in conditions
of work, or worse, between different groups of third country nationals,
is divisive and counterproductive to the smooth operation of the
labour market.
The Commission states it is committed to preventing
illegal migration, countering human trafficking and protecting
the external border. Illegal immigration is fairly easy to tackle—as
it is a construct of law, the key is to ensure that laws are designed
in such a way that they do not create illegality in the migration
process. For instance, the rapid and successive changes to immigration
laws in a number of Member States has made it increasingly difficult
for persons to know what their status is and to keep themselves
within the ambits of the changing immigration rules. Bringing
in substantial changes to rules without transitional periods,
for instance as the UK has done recently, only creates confusion
and illegality, as individuals find themselves in an impossible
position as regards their status. One of the easiest ways to diminish
illegal immigration in the EU is to permit individuals to switch
their status without having to leave the Member State. Thus when
an individual marries or is offered a job, instead of insisting
that he or she leave the Member State to go back to his or her
country of origin (which may well be in turmoil) to obtain a special
visa (such as entry clearance) in order only to turn around and
come straight back to the EU (often at great cost) the EU should
design rules which permit rapid and simple procedures to switch
from the earlier status to the new one at no or very low cost.
This would have an immediate and dramatic effect in reducing illegal
immigration in the EU.
One of the more problematic aspects of illegal
migration is that connected to illegal work. Where third country
nationals are offered jobs when their immigration status does
not permit them to take up those jobs, illegality is created.
Thus the strategy of the Commission to diminish this form of illegal
migration is to ensure that the directives which it proposes for
labour migration foresee the change of status of an individual
while within a state from visitor or student to worker. The rules
on the issue of work and residence permits need to include short
deadlines within which state authorities must reach decisions
so that companies and individuals can make their plans without
undue disruption by state authorities. The legitimate concern
of state authorities to protect the EU labour market must not
be used as an excuse to delay or otherwise make unattractive the
choice of the business regarding the individual to hire. The objective
of effective protection of labour conditions and wages is better
served by labour laws and collective/sectoral agreements than
immigration laws which have the effect of creating illegality,
which is then very difficult to regulate and promotes exploitation
of workers.
The Commission indicates that ensuring freedom
of movement within the EU is a key objective. Under this heading
it proposes the extension of the European Borders Agency, FRONTEX,
improving networking of sea border controls and a European surveillance
system helping Member States to deal with "growing flows
of illegal immigrants." As the UK is on the far side of the
EU's Schengen border, which is the border, which FRONTEX controls,
these proposals are of direct concern to us. On the face of the
document, the Commission appears to be suggesting that FRONTEX
may be patrolling the English Channel to ensure that illegal immigrants
do not move from the UK to the continent. It is worth remembering
that not only are Ireland and the UK outside the Schengen external
border of the EU but also the ten Member States which joined the
EU in 2004 and the two which joined in 2007. Denmark is only on
the inside of this border by reason of an international treaty.
Thus 14 Member States are outside the Schengen external border,
one is inside only by virtue of a treaty and only 13 Member States
are inside the Schengen external border. The measures which are
suggested for the policing of the external border, in so far as
they relate to the Schengen external border which is the relevant
border for FRONTEX, cut through the heart of the Internal Market.
Further, regarding the terminology used in the Strategy, exactly
how a third country national can be an illegal immigrant before
he or she has arrived in the state of destination and the state
authorities have determined whether he or she is entitled to entry
remains a matter of some mystery.
In any event, one of the keys to effective EU
border management is to ensure that the border is a place where
EU law is applied correctly and efficiently. This means that the
Regulation entitled the Schengen Border Code must be fully and
properly applied at all the EU's external borders (that is the
Schengen External Borders). The Regulation specifies strictly
the grounds on which a third country national may be refused admission
at the EU's external border, provides for strict procedural requirements
including written notice of the decision and grounds, a right
of appeal and information about how to obtain representation to
exercise that appeal right. FRONTEX should be centrally engaged
in ensuring that the EU's external border is a place of law where
the Border Code is fully and correctly applied.
The Commission also states that it plans the
launch of the Visa Information System. The UK will be outside
this measure as it is a continuation of the Schengen borders acquis
out of which the UK has opted. However, it is a fact of border
control policy that visa restrictions are much disliked by travellers.
They present an obstacle to travel, they tend to be applied selectively—persons
with the same nationality but resident in different parts of the
world tend to be treated very differently—for instance the
Bangladeshi national resident in Washington USA and his or her
cousin resident in Dhaka. Different nationalities of persons subject
to visa requirements tend to be treated very differently—for
example Saudi nationals in comparison with Chinese—not only
as regards the speed and rigor of the checks before visas are
issued but also as regards the documents which are required to
be presented. These types of difference do little for the EU's
reputation as an area administered in a fair and coherent manner.
Worse, such differences raise questions about whether disguised
discrimination on a prohibited ground, such as national origin,
is not at work. The rapid conclusion of the Visa Code, currently
under consideration in the Council, with the inclusion, as proposed
by the Commission, of a right of appeal against refusal of a visa,
would be very welcome. The VIS should not be instituted until
there is EU law about how visas are issued which is clear, consistent
and readily available to the traveller.
The Commission does not refer to any revision
of the visa black list—the list of those countries whose
nationals require a visa to enter the EU. Nor is there any mention
of the facilitated visa agreements which the EU has entered into
with some countries, notably Russia, to ensure that nationals
of those countries are not subject to the full vagaries of the
EU visa system. Both a revision of the visa black list to take
all countries in respect of which there is not an immediately
public security risk off the list and the settlement of facilitated
visa agreements with more countries would be very appropriate
strategies for the Commission under this heading.
COMMON EUROPEAN
ASYLUM SYSTEM
The Commission states its intention to propose
further steps towards a common policy on migration and measures
to achieve a Common European Asylum System by 2010 in line with
the Hague Programme. No further detail is given in the Annual
Policy Strategy.
ILPA welcomes the statement by the Commission
that the right for asylum is an expression of European solidarity.
In ILPA's view it is more than that however and strikes at the
heart of humanitarian law and basic human rights. The establishment
of a truly European system of immigration and asylum law and policy
which fulfils the EU's obligations regarding human rights must
not only set out a fair and equitable system but also ensure justice
for the individual.
ILPA recalls the Hague Programme's call to the
Commission to conclude the evaluation of the first-phase instruments
in 2007. An extensive assessment of the Community legislation
adopted to date is necessary to determine where legal and practical
gaps exist and may require further legislation or amendment. The
European Commission has also a legal responsibility to monitor
transposition and implementation of the directives into national
law. Given the low standard of the safeguards contained in some
of the instruments adopted in the first phase, strong monitoring
of transposition of Community instruments into national law, taking
into account the obligation to apply this legislation in accordance
with the Geneva Convention and human rights principles and treaties,
will be crucial in ensuring that member states maintain or adopt
legislation and policies that are in line with international law.
Subject to evaluation of first-phase instruments
and to making the required amendments in those areas that fall
short of international standards, ILPA supports Member States'
objective of supplementing and developing further the legal instruments
in the common European asylum system, in accordance with the 1951
Refugee Convention and other relevant international law, provided
that the EU's objective is to establish common high standards,
rather than common low standards.
But ILPA is very concerned that Member States
are not seriously co-operating at the European level: recent years
have seen their constant efforts to tighten their own national
legislation and increasing efforts to shift responsibility for
processing asylum claims either to each other or outside of the
EU altogether. The commitment to the principle of non-refoulement
as regards the protection of asylum seekers is increasingly tenuous.
While statements regarding the importance of the protection of
refugees abound, the application of the principle of non-refoulement
on which these statements are founded is increasing lacking. Instead
the vision of asylum seekers as floods and a menace is increasingly
at the fore.
The single most fundamental objective of a Common
European Asylum System must be to end the current asylum lottery
and instead guarantee that every asylum applicant arriving in
the EU has access to one fair and thorough asylum determination
procedure. The Commission's objective must to be achieve this
through revision of current legislation and introduction of new
legislation in the future.
ACCESSION NEGOTIATIONS
WITH CROATIA
AND TURKEY
ILPA welcomes the Commission's commitment to
continue negotiations with Croatia and Turkey with a view to their
accession to the EU. However ILPA is concerned at the spirit in
which recent accessions to the European Union have been entered
into in recent years. Since May 2004 twelve new States have joined
the European Union. The Accession Treaties governing the accession
arrangements have all included transitional provisions relating
to the free movement of persons.
ILPA is extremely concerned at the attitude
of existing Member States towards accepting that nationals of
new Member States acquire full EU citizenship rights post accession.
ILPA notes that in the UK for instance transitional provisions
for Bulgaria and Romanian nationals have been interpreted in a
least inclusive manner and since 2004 the UK government has taken
deplorable steps to exclude accession State nationals from any
welfare provision through legislation.
ILPA would urge the Commission to ensure that
future accessions are not marred by the same negative approaches
by Member States. To this end it is necessary for the Commission
to make clear to the existing Member States that their obligations
post an accession include equal treatment of accession State nationals
and full recognition of their status as EU citizens.
COMMUNICATION WITH
CITIZENS
ILPA welcomes the Commission's commitment to
communicate with European citizens about European issues. ILPA
considers that such commitment should be made by the UK Government.
The UK Government has demonstrated its inability
to communicate openly and honestly about European issues. Take
for instance the "foreign national prisoners issue"
where the Home Secretary made the following statement:
"the immigration and nationality directorate
has been taking a robust approach to the deportation of European
Economic Area nationals, which has been defeated consistently
in the courts. We will be changing the law to strengthen the link
between criminality and deportation, but in the meantime we are
no longer taking unproductive cases to the courts at the taxpayers'
expense, with negative results." (9 October 2006 Statement
to the House of Commons)
To blame the courts for IND's lack of success
in deporting EEA nationals is deplorable. A responsible Government
would have explained in clear terms to the public the circumstances
in which an EU national may be deported according to Community
law which the courts and IND are obliged to respect.
The UK Government has equally failed to communicate
properly with the public on the issue of accession of new State
to the EU. Instead of challenging populist opinion that accession
State nationals would likely come to the UK in their masses to
seek State benefits the Government embarked upon a legislative
programme designed to ensure that European Union citizens are
discriminated against in respect of access to social security
and homelessness assistance despite the Social Security Advisory
Committee amongst others urging against such steps.
In ILPA's view it is the responsibility of all
European institutions and the Member States to ensure that European
issues are communicated to the public in an open and honest manner.
Ms Nicola Rogers
Barrister, Garden Court Chambers
Co-convenor ILPA European Sub-Committee
Professor Elspeth Guild
Radboud University Nijmegen,Partner,
Kingsley Napley, London
20 April 2007
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