FECL 56 (December 1998):
A confidential "strategy paper" from the Austrian EU Presidency, leaked in early September, has drawn strong concern from human rights organisations. Criticism has mainly focussed on proposals for the EU to depart from prevailing international refugee law, by forcing a change of the 1951 Geneva Refugee Convention. However, the outlined strategy comprises even more disquieting elements. The EU should show "political muscle" in preventing refugee and migrant fluxes, the paper suggests, and enumerates possible foreign policy action ranging from economic pressure to military intervention against refugee generating States.
The following review refers to the first draft of 1 July 1998 which better reveals the character of planned EU policies in the field of migration and asylum than later versions of the document, in which the wording of some particularly controversial proposals has been watered down without any change to their essence.
Frank avowal of a pathetic failure
The first part of the paper is an attempt to analyse prevailing EU asylum and immigration policies. Reference is made to an EU Commission report of 1994, in which Commissioner Padraig Flynn defined three key objectives of future EU policies in the field of asylum and immigration: countering migratory pressure; ensuring effective control of immigration; and strengthening the position of legal immigrants (Flynn report: see FECL No.23: "EUROPEAN COMMISSION: COMMUNICATION ON IMMIGRATION AND ASYLUM POLICIES", No.26: "EU-commissioner on asylum policies: evasive and contradictory").
The strategy paper begins with the observation that none of these objectives laid down in 1994 have been achieved. The EU "has not really managed to influence sustainably the reality of immigration", the paper notes. "Neither the potential to emigrate nor actual emigration from the main regions of origin has decreased in the past five years (rather the opposite). Furthermore, neither the control activities at the external borders of Schengen and the Union nor the member States' laws on aliens and asylum stop illegal immigration". The paper goes on to state that the proportion of illegal immigrants has "clearly increased". While the numbers of asylum seekers have stabilised since 1994, this has not led to a drop in the total number of illegal immigrants. Thus, while it has become "less attractive for illegal immigrants to seek asylum", people are continuing to pour into Europe. Poor areas of the world are "continuing to decline dramatically and migration to rich, especially Western European, countries now exceeds 1.5 million per annum". While deploring the EU's incapacity to give accurate information regarding the number of illegal immigrants on its territory, the paper notes: "It must be now assumed that every other immigrant in the first world is there illegally".
The EU countries have achieved neither "the really crucial breakthrough in preventing or reducing the number of manifestly unfounded applications for asylum" nor "any real success in combatting the abuse of the right of asylum". With one exception - the crisis in Albania in 1997, they have been unable to prevent movements of mass exodus. The concept of temporary admission, designed to reduce the number of refugees granted permanent stay, got "bogged up at the very outset and... has not to date been implemented in the Union". Cooperation with transit States has not succeeded in stopping the influx of illegal migrants, police cooperation has not succeeded in "forcing back on a lasting basis" the trafficking of immigrants by international criminal organisations. No effective measures against illegal employment have yet been implemented...
The paper concedes that, between 1991 and 1993, the EU Member States introduced a number of new concepts in the field of asylum, such as:
the concept of safe areas of internal refuge in a persecuting State;
the concept of only one Member State being responsible of examining an asylum application (Dublin Convention) and the harmonisation of visa policies; and,
the concept of "temporary protection".
The strategy paper takes the view that the firm implementation of these concepts and the introduction of corresponding measures in the field of immigration would have contributed to effectively reducing illegal immigration, but regrets that this "reform drive" ended in 1994.
"How effective is a common visa policy", the paper asks rhetorically, when most immigrants "arrive illegally, without a visa in any case", when countries of origin refuse to take back their nationals, when the "capacity of integration" of EU Member States is used "primarily by illegal immigrants at the expense of legal immigrants?".
The paper comes to the conclusion that the only way to handle the situation for the EU to reconsider "traditional migration policy management patterns" and to develop new "cooperative, transnational and comprehensive multidisciplinary approaches", including the establishment of a "new strategy", a "uniform policy concept", agreed by all EU countries.
Outlines for a "new strategy"
The essential elements, of such a "new strategy" are outlined in the second part of the paper. Migration pressure, it is claimed, can only be reduced, if all migration-related decisions within EU institutions - i.e. Third Pillar, foreign policy, economic relations with third countries, association agreements, and "structural dialogue" with countries applying for EU membership - are linked in a common approach. For it is "impossible to take any decisions involving Iraq, Pakistan, Afghanistan, the countries of former Yugoslavia or Turkey without taking account of the plainly visible tide of illegal immigration currently taking place" (point 114).
The strategy proposals are based on the assertion that "the possibilities of...eliminating economic causes of migration from the Third World are undoubtedly very limited" and that the same applies to "demographic and environmental factors and to durable change in the human rights situation". Consequently, the EU should concentrate on taking action in "areas close to Europe, where internal ethnic crises threaten to escalate".
Military interventions to prevent migrant flows?
In taking such migration-preventive action the EU should not limit itself to the political level only, it is emphasised (point 53). Europe must "act independently" and "not confine itself to joining the activities of other bodies". Migration fluxes caused by various conflicts dramatically affect vital security interests of the EU Member States, it is argued, and therefore it is "quite legitimate for Europe to take its own decisions regarding intervention in such impending cases" (point 54). "[D]irect influence and presence is necessary, not only for the prevention and rapid containment of conflicts, but also for the restoration of normality, which makes it possible for displaced persons to return and stabilises regions in the longer term" (point 55). The possibility of "voluntary repatriation" of third country nationals should be actively safeguarded, "if necessary using the same means of force employed by the international community for maintaining peace and bringing conflicts to an end" (point 131).
All this amounts to a barely veiled call for "independent", i.e. unilateral action by the EU States, including military intervention not condoned by the UN Security Council.
Relations with emigration and transit States: carrots and sticks
Expansion of development aid and economic cooperation with the main regions of emigration to Europe is essential in reducing immigration pressure, the paper acknowledges. However, such privileged treatment granted by the EU to countries of emigration and transit must be based on binding commitments made by the third countries concerned to contribute actively to reducing emigration to the EU Member States. "Agreements with migrants' countries of origin can prove a most effective dissuasive instrument in migration management", it is noted (point 106). As an illustration the paper states that "just about all the European Union's bilateral agreements with third States must incorporate the migration aspect...For instance, economic aid will have to be made dependent on visa questions, greater border-crossing facility on guarantees of readmission, air-connections on border-control standards, and willingness to provide economic cooperation on effective measures to reduce push factors" (point 59).
A number of specific measures to be required from third States seeking bilateral agreements with the EU are enumerated under the rubric "Agreements with countries of origin and of transit". Referring to the refusal of certain countries of origin to take back their own nationals denied stay in the EU, the paper stresses the importance of readmission agreements and proposes a strategy: "Either the EU as an entity manages to use its international and political muscle to persuade such States to adopt such an agreement, or consideration is given to an international legal instrument enabling a person's identity to be determined [unilaterally] by an EU host country as well as linking such determination to the legal consequence that the country of origin thus ascertained is obliged to take back its nationals" (point 108).
Countries of origin must be made to cooperate in determining the identity of immigrants smugglers and their clients. The burden of proving the nationality of a person denied entry or stay on the territory of the EU "should not rest solely with the expelling State". "Objective means" of substantiating a person's belonging to a nationality must suffice (Point 69). States with a high potential of illegal migrants "must be induced to set up effective fingerprint files" (point 69) [Are they expected to take fingerprints from all their citizens?] . The paper also calls for "the international exchange of data on the identity of (immigrant) smugglers, rejected asylum seekers and illegal immigrants (point 70). Last not least, countries of origin and transit states should be brought to conclude agreements authorising police of EU countries to engage in hot pursuit and observation across their borders (point 68).
"Concentric circles" around the fortress
Quite remarkably, the paper is the first official EU document to acknowledge the very existence of a "fortress Europe" policy concept. Indeed, the paper proposes that "a model of concentric circles of migration policy could replace that of "fortress Europe" in reducing migratory pressure, and, more specifically, tightening border control. According to this model, all States of the world would be assigned to one of four "concentric circles" constituting a sort of defence line - around a first (or inner) circle, formed by the EU Member States, capable of fulfilling Schengen standards of control, and other countries which "do not cause emigration" but have become "target countries on account of their advanced economic and political situation" (points 60 and 116).
The second circle would consist of "transit countries" which no longer generate emigration but which "on account of a relatively stable internal economic and political situation accept only very limited control procedures and responsibility for migration policy". This second circle would comprise the neighbour countries of the Schengen/EU territory, that is the associated States and "perhaps also the Mediterranean area". These countries' systems of control should gradually be brought into line with the first-circle standards (points 60 and 118).
The third and the fourth circle would contain the countries of emigration. The third circle would be formed of countries of both emigration and transit, i.e. the CIS area (former Soviet Union), Turkey and North Africa. These countries would be required to "concentrate primarily on transit checks and combatting facilitator [migrant smuggler] networks". The fourth (outermost) circle would consist of countries of emigration apparently deemed somewhat beyond the reach of European "political muscle" (Mention is made of "the Middle East", China and "black Africa"). These countries are to be encouraged to "eliminate push factors" of migration (points 60 and 119).
A country meeting the obligations arising from its assignment to a particular circle would be rewarded. "For example, the second circle must meet Schengen standards as a precondition for EU membership; for the third circle, intensified economic cooperation is linked to the fulfilment of their obligations; and the fourth circle, the extent of development aid can be assessed on that basis" (point 61).
One could make a distinction between two categories of proposals affecting asylum. The first category consists of specific measures of a rather technical nature, insofar as they are aimed at mending loopholes in and improving the deterrent effects of the prevailing asylum system. For example, the introduction by the EU Member States of a uniform asylum examination system based on a single administrative instance of decision and a single instance of appeal making quick decisions according to a binding time-table is proposed as a means of combatting "illegal immigration" (point 66). Moreover, asylum applicants who have crossed the border illegally would automatically be put back on the other side of the border and "any procedures are initiated only after this has been done" (point 92). It is stressed that "otherwise the individual would be able in practice to void international agreements of their effects thanks to the delaying effect of asylum applications" (point 107).
A series of measures proposed to combat immigrant smuggling would also directly affect asylum seekers. Among others, the paper recommends a review of the experiences of the Action Plan on Iraq, the Schengen "Task Force" on illegal immigration (Action Plan on Iraq and Task Force: see FECL No.53, p.1), national police forces, Europol and the Schengen system with a view to leading "an all-out attack throughout Europe against smuggling over a period of two years", as well as the implementation of "a penal policy of zero tolerance" in combatting illegal migration. As for the Schengen Task Force, the paper suggests its expansion to a full EU Directorate General (point 121).
"New refugee protection"
The second category of proposals can be found under the rubric "New refugee protection". These proposals have drawn most public attention since they bluntly propose a departure from prevailing international standards of refugee protection.
Most notable in this respect is the proposal to "supplement, amend or replace" the 1951 Geneva Convention on refugees through a new Convention (point 103) and to consider a "new approach" to refugee protection that could include "initial steps harking back to the beginnings of the development of asylum law when the affording of protection was not seen as a subjective individual right but rather a political offer on the part of the host country".
This suggestion is based on a number of quite questionable stereotypes. The grounds for flight have changed, it is argued. In the past, most refugees were fleeing from "authoritarian government regimes"; nowadays a majority of applicants seek asylum on other grounds such as "inter-ethnic conflicts", persecution by others than the State, and "other threats to life on a large scale". According to the paper, these (allegedly) new threats are not covered by the 1951 Geneva Convention and are "much more difficult to prove or disprove". As a result, "the possibilities and limits of a properly constituted legal procedure focussing on the individual case will be exceeded" (point 101). Consequently, the paper suggests "a move to less rule-of-law oriented approaches to protection and more to politically-oriented approaches" (point 132).
Achieving a departure from prevailing international refugee law and practice as outlined above will take time, the paper notes, and will require diplomatic efforts targeting the "UNHCR opinion-forming bodies" (point 103). The objective would be a redefinition of the tasks of the UNHCR so that the UNHCR would deal less with the situation of refugees in the States of refuge and more with the human rights situation and other push factors of emigration in refugees' countries of origin (point 62). The "entirely successful" Dayton agreement is mentioned as an example for "changing substantially" the UNHCR's basic policy towards "repatriation of displaced persons" and "local solutions to problems" rather than "resolving the problems by accepting flows of refugees into third States" (point 35).
The new role outlined for the UNHCR fits well with the paper's critical remark that by recognising persons as refugees the 1951 Geneva Convention encourages them to settle permanently in the host country, whereas it should be "possible and internationally acceptable for such people to return home within a foreseeable future of time" (point 127).
A number of measures proposed in the paper aim at a better "management" of immigration. The question of improving the status and facilitating the integration of legal immigrants is broached but the paper is remarkably vague as to the solutions proposed. Integration programmes should be developed, it says, but in view of the "socio-political difficulties facing many Western European States" they must be "socially acceptable to the host States". Setting annual Immigration quota could be an effective means of migration management, it is claimed, "as long as [the quota] remain to some extent within a realistic framework". Illegal immigrants should be denied social welfare benefits and access to the labour market, the paper notes, but fails to give any answer to the question of how to deal with all the people thus excluded from society but nonetheless resident in the EU territory (point 83). Firm action is recommended against employers of illegal workers, but nothing is said about how such a policy could be implemented successfully now, when it has proved impossible to implement in the past (point 84).
Thus, the main focus of the paper is on measures enabling the detection and removal of unwanted immigrants through better control. This control must cover "every step taken by a third country national from the time he begins his journey to the time he reaches his destination" (point 85). The paper recommends "security nets in areas whose geographic or transport characteristics mean that they are particularly exposed, spot checks in the hinterland, unprompted by suspicion, and intensive cooperation on the part of the authorities beyond the sphere of competence of the individual State" (point 91).
Sources: Strategy paper on immigration and asylum policy, from the Austrian Council Presidency to the K4 Committee, 1.7.98, 9809/98 CK4 27, ASIM 170, limite; Second draft, 29 September, 9809/1/98, Rev 1 Limite, CK4 27, ASIM 170. See our comment in this FECL, p.12: 'Zero tolerance' policy on immigration is the real security threat.