Ireland, the Common Travel Area, Schengen and the Treaty of Amsterdam: some post-2004 perspectives.

Piaras Mac Éinrí, Irish Centre for Migration Studies, National University of Ireland, Cork

Note: this is an incomplete, largely unfootnoted, draft. Word count: 4450.

Summary

After 2004 the EU will have primacy over its Member States in immigration and asylum policy. A common EU policy will emerge as well as joint regulatory and enforcement machinery, possible even including an EU border immigration force. It is likely that Britain and Ireland will be obliged to join up sooner or later, ending the opt-out incorporated in the Treaty of Amsterdam and ending the existing Common Travel Area. There are major civil liberties implications,  including the possible introduction of national identity cards in Britain and Ireland as well as the introduction of continental-style policing of a more intrusive character such as street stop-and-search and surveillance of immigrants. The net effect may well be to reinforce the creeping marginisalisation of immigrants and those born within the EU who are visibly of a different ethnicity than the mainstream.

Background

Postwar Europe had peculiar and incomplete attitudes and policies in the field of immigration. Even when it was recognised that immigration was necessary to rebuild Europe’s war-damaged cities and industries, and when the results of very specific forms of xenophobia were all too fresh in people’s minds, the fiction was maintained that Europe was not a region of immigration. Gastarbeiter were economic production units, not people, who could be required to return home when their services were no longer needed. Governments such as that of France recognised the need for immigration but sought to regulate it through the machinery of bilateral state-to-state agreements.

Later, with the slowdown of economic activity after the oil crisis of the early 1970s, new labour immigration virtually ceased, although family reunification remained a significant factor allowing immigrants to continue to arrive from outside the EU. In the 1980s and 1990s there was a growing flow of forced migrants, including those who chose the asylum route because no other was open to them, driven to Europe by war, famine, disease and economic hardship.

Recently, from the late 1990s onwards, the debate has shifted in a radically new direction. An ageing Europe and a diminishing workforce will face economic decline and hardship unless the labour force can be supplemented from outside. Moreover, immigration can no longer be seen as a purely temporary phenomenon which has no implications for host societies. Yet the acceptance of the notion that permanent immigration is inevitable and may even be desirable flies in the face of strong traditions of nation-state identity, very frequently ethno-centric in nature. It also raises basic issues of citizenship and exclusion.

The Schengen acquis

Schengen is a pleasant border town in Luxembourg, close to both the German and French borders. In 1985 and 1990 inter-governmental conferences were held there involving France, Germany and the Benelux. They agreed a series of new arrangements concerning cross-border movements of people, which took effect in 1995 and quickly included a number of other EU Member States. The best-known innovation was the gradual abolition of border checks. Other measures, especially in the field of security cooperation (e.g. the Schengen Information System or SIS), were also provided for. For those countries which had adhered to these arrangements a common zone of free movement was opened up, so that in many cases there is little to tell the traveller, other than an occasional flag or change in road markings, that an international frontier has been crossed.

The legal implications in terms of the relationships between persons and borders are far-reaching, literally and metaphorically. Guild points out that that ‘the border of the Netherlands for the admission of aliens is to be found at the edge of the frontiers of all the Schengen states. Thus Germany, France, Italy etc are part of Dutch sovereignty for the purpose of the borders for persons[1]’. At the very least it may be said that this holds out the potential for a radical remapping and reconfiguration of traditional assumptions about nation states, citizens and aliens.

From Member State to Union competence: the Treaty of Amsterdam

Immigration issues, including admission and residence, asylum and humanitarian leave to remain, family reunification and economic migration, have traditionally been core policy fields to be regulated independently by national governments[2]. Specific intra-EU cooperation on any substantive aspects of migration and related issues is relatively recent and was always intergovernmental in character – the Schengen Treaty and the 1990 Dublin Convention on the treatment of asylum applications are cases in point. But in 1997 a significant change occurred when the Treaty of Amsterdam was adopted as a new instrument of EU law, with the aim of ‘enhancing European integration and, in particular, enabling the European Union to develop more rapidly into an area of freedom, security and justice’.  The integration of the Schengen acquis into the framework of the European Union, by means of a Protocol to this treaty[3], marked a major step towards the development of ever closer cooperation between the Member States in the fields of immigration and asylum policy. More importantly, it marked the creation of a significant level of Community competence in the field.

The Treaty of Amsterdam, and the subsequent Tampere (October 1999) and Laeken (December 2001) European Councils, have laid the groundwork for a phased but fundamental shift from national to EU level. The free movement of the peoples of the EU – one of the central pillars of the original Treaty of Rome - cannot be realised to its fullest extent, and a genuine Europe of common citizenship created, unless issues of immigration, residence and freedom of movement are also addressed in a systematic and integrated way. Lest it should be thought that the impetus for major change was a purely progressive and people-centred one, it should be pointed out that it has been argued that Schengen really arose because of pressure from transport companies and that interior ministries were not especially happy with the proposal to remove border controls.

The issue of control is central. On the one hand, the democratic deficit at the heart of EU governance has led governments and the EU to stress new ways of empowering European citizens through an emphasis on a Europe of freedom and personal liberty. On the other hand, the introduction of such freedoms, including the freedom to travel without hindrance between the countries of the EU, has been countered in some quarters by an evident concern about the dangers of abuse and the possible lack of control of persons, from within or without the EU, who might wish to avail of such freedoms for nefarious purposes and/or who might not be entitled to avail of such freedoms in the first place.

The shifting nature of the relationships between individuals, borders, national and EU spaces entails new and potentially exciting hybrid, if fragmented, legal and social identities, rights and entitlements. One should nonetheless not ignore present realities.  In effect, there is already a highly discriminatory status quo, with different categories of persons within the space of the EU – citizens with full rights, long-term residents with more limited rights and freedoms, a growing category of individuals seeking asylum or humanitarian leave to remain and whose status is indeterminate for long periods, and a final category of persons without status, living on the margins of European society with no rights or entitlements.

2004: a further major change

While the Member States currently retain primary competence concerning immigration policy and unanimity is required for any new measures adopted at EU level, this situation will change in 2004 (five years after the Treaty of Amsterdam took effect), when competence for immigration and asylum policies passes to the Union, decisions can be taken by qualified majority vote and the Parliament will exercise an ever more powerful role. In the meantime the European Commission has been preparing for the changeover through the introduction of a wide range of new reports, position papers and proposals, although Member States have not exhibited any great enthusiasm for the new regime and progress has been very slow.

The developments outlined are presented as positive and progressive, and are in some respects, but there are clear dangers as well. For instance, continental European security forces have traditionally relied on an interventionist approach to the verification of identity and residency rights, including the frequent use of street stop and search methods and raids on immigrant quarters. With the removal of border controls, such methods are likely to be relied upon to an even greater extent in the future and are being augmented by new measures such as hot pursuit rights into neighbouring countries. Indeed, media reports in the Austrian and German regional press suggest that this is already happening. In a more general sense, there must be a danger that the harmonisation of EU legislation and policy will be achieved through a process of downward, not upward, standardisation, and through an increasingly security-driven approach to the field. Furthermore, an approach to immigration and asylum issues based on the ‘securitisation’ of these policy fields – or merely the strong public perception that this is the case – can only increase the danger of the de facto criminalisation of non-EU persons as a whole living in the EU, as well as those who are EU citizens but who are visibly identifiable as belonging to a minority ethnic group. The resultant exacerbation of an already-evident rise of European racism and xenophobia can only lessen the chances of developing successful long-term integration policies based on parity of esteem and support for diversity.

Britain and Ireland – a different tradition?

In contrast to the developments outlined above, it has been a cardinal principle of UK policy to control the movement of persons across its frontiers through its own legislative and administrative arrangements[4]. In an island country which lacks an internal system requiring individuals to be registered and their addresses monitored, it cannot be surprising that the regulation of the movement of persons across the sea, air and land frontiers has come to be seen as a core issue of national policy and sovereignty. British policy therefore has insisted upon the necessity for the UK to retain its own border checks, making it impossible for them fully to sign up to the Schengen acquis. This situation is explicitly recognised in a Protocol on the application of certain aspects of Article 14 (ex Article 7a) of the Treaty establishing the European Community to the United Kingdom and to Ireland[5] (i.e. a protocol to the Treaty of Amsterdam), which allows the UK and Ireland to opt out of the full application of the Schengen acquis. In effect, if the UK were to sign up to Schengen and border controls between the UK and continental Members States were to be removed, the control of entry of non-EU citizens into the UK would pass to whichever border administration such individuals first encountered in the EU Schengen area – e.g. Italy or Portugal. Moreover, a difficulty would also arise for a second category of persons whose freedom of movement within the EU has not yet been fully elucidated – those who have a right of residence within one Member State only, such as third-country citizens with residence rights, convention refugees and persons with humanitarian leave to remain.

Conversely, continental EU Member States would be unlikely to welcome a British and Irish adherence to Schengen and the resultant dropping of border controls without the introduction of ‘flanking measures’ (including greater surveillance away from border crossings) to offset this diminution in surveillance and control. It is very likely that there would be strong pressure to introduce national identity card systems in both countries, a move which would present few technical problems (each of us leaves ubiquitous electronic footsteps already in any event) but which would attract very strong political opposition, as would any measures which might be seen as resembling the abandoned and unloved ‘sus’ laws in the UK. It is noteworthy that there has been criticism in France of current UK policy in the aftermath of the events of 11 September, on the grounds, inter alia, that Britain’s allegedly lax system of controls make it a ‘breeding ground for terrorism’. The same criticism has been levelled at the UK in the context of the disproportionate number of asylum seekers trying to get to Britain. According to this viewpoint, a main pull-factor is the fact that it is relatively easy to ‘disappear’ once on British territory, compared to continental Europe. 

In sum, Ireland and Britain have a different legal tradition, greater protections for the individual (including habeas corpus) and no requirement for national identity cards. But it may be difficult to maintain this separate regime in a pooled policy and regulatory framework and where the Union, not Member States, has primary competence.

The Common Travel Area (CTA)

Ironically, measures comparable to the freedom of movement provided for in the Schengen acquis have been in place between the UK and Ireland from the early 1950s. UK subjects and Irish citizens have the right freely to travel between the two jurisdictions without having to carry a passport. For this very reason, it has never been viewed as practicable for Ireland to adopt the full Schengen arrangements in the absence of a British decision to do likewise, as the logical outcome would be the imposition of border controls between the UK and Ireland. In the case of the North/South land frontier this would be virtually unworkable, while enormous inconvenience would undoubtedly be caused to people in two societies which, in trading and labour market terms, are still highly integrated.

The fact that the freedom of the CTA only extends to UK subjects and Irish citizens is worthy of note, since it has led, following the increase in recent years in asylum seekers and other immigrants in Ireland, to a dilemma for immigration officials viz. how to know that a particular individual was entitled to benefit from the CTA and not simply trying to enter the country illegally. The obvious solution – a system of mutual recognition which would bestow the right of freedom of entry on anyone who was resident in the other CTA partner’s territory, accompanied by a good-faith acceptance of that person’s right to be there, has not been adopted. Instead, regrettably, a de facto practice of stopping anyone who looks visibly different has often been followed. Apart from being racist in effect if not in intent, this has led to various absurdities as black British visitors (and in a notable case a black Irishman from the distinctly un-British West Belfast) have been stopped and harassed. The contrast with the Schengen arrangements is striking. There is nothing to stop persons who do not have the legal right to freedom of movement from crossing, for instance, from France to Germany, but the system of internal security controls, unlike those in place in Britain and Ireland, means that border monitoring is considerably less important than in the case of the CTA as a means of controlling such movements.

A little-noticed but significant side-effect of the CTA, which has been seen as an internal arrangement between the UK and Ireland, is that it has in practice largely aligned Irish policy concerning external immigration with that of the UK. Thus, the Home Office ‘black book’ of persons refused leave to enter the UK was circulated to the Irish authorities and Irish diplomatic missions and used to ban entry to such persons to Ireland (an ironic state of affairs considering the impact of the PTA on Irish people, from Northern Ireland as well as the Republic, in Britain).

In recent years this has not prevented Ireland, with a growing demand for labour immigration, from modifying its own immigration policies. These policies are still largely grounded in legislation dating back to 1935 but have increasingly reflected a pragmatic and market-led approach with the introduction of special work visa/authorisation programmes for certain high skills immigrants and the widespread use of short-term work permits (with strong echoes of the Gastarbeiter regime of the 1960s) for other immigrant workers. However, the modalities of Irish policy, with strongly privatised elements, are at variance with the more statist approach followed in continental EU Member States, which emphasise the official management of migratory flows including the use of quotas. Ths again raises questions about future harmonisation.

Although Ireland and the UK, along with Denmark, which has signed but not applied certain aspects, opted out of Schengen[6] in the context of the Treaty of Amsterdam (they do participate in certain data-sharing arrangements), their position must be seen as increasingly anomalous, a point noted by the European Parliament in its deliberations, when Ireland and Britain were urged to participate fully in Schengen[7]. Moreover, acceptance of the Schengen acquis is a prior condition of entry for new applicant States. This requirement may be seen to have less to do with the provision of new freedoms for citizens of applicant States and more to do with the desire of existing EU Member States to ensure that that as the borders of the Union shift eastwards there is an accompanying reinforcement of measures to prevent unauthorised migration across the Union’s new frontiers.

Emerging geographies of identity 

It can be argued that Title IV of the Treaty of Amsterdam (‘Visas, asylum, immigration and other policies related to free movement of persons’) is a key element in the creation of a new European identity and represents a quantum leap from such forms of ‘soft’ identity building as a common passport design, the EU flag and stirring language about our common heritage. On the plus side, a new space of European identity will be created, with common freedoms and protections throughout the Union. On the minus side, the new arrangements may reinforce the perception of a two-tier Europe of citizens and denizens, to quote Hammar’s famous phrase[8]. Nor is it evident to people living in the UK and Ireland that the legal framework being put in place will be sufficient to protect individual civil liberties, especially those of immigrants, in the light of these changes.

Quite apart from the content of the new developments, the modalities through which they are being put in place give cause for concern. The recent Treaties (Maastricht, Amsterdam, Nice) were all presented as largely ‘technical’ in character, as well as being highly complex and difficult to explain to the broader public. Yet they are a key element in a far-reaching contructivist project to create a new European identity.

In this context the Irish ‘no’ in the referendum on the Treaty of Nice may well have been because of a variety of local views about specific issues. But it also raises more profound issues about the location of the borderline between a functionalist approach to the development of the EU, pragmatic and phased in nature, and a more explicitly ideological approach based on a radical transfer of competence. It was one thing to retain one’s own national identity and benefit from a number of useful but ultimately non-essential advantages of European citizenship, such as the right conferred by the Treaty of Maastricht to apply to another EU Embassy in a third country where one’s own country did not have representation. But there is little evidence to date that individual EU citizens have really developed a strong sense of loyalty and ‘belonging’ to a broader Union entity. A radical transfer of competence such as that proposed, if not based on a solid consensus and some form of emotional allegiance, is therefore a recipe for a continuing crisis of confidence and accountability in the European project.

Attitudional factors

A prerequisite of successful transition to a more inclusive and diverse society such as that implied by the developing European space is the collective adherence to core values around which public opinion can be mobilised. Simply put, people have to agree on some level that the changes being embarked upon are satisfactory and will result in tangible improvements. Failure to conclude such implicit covenants may well lead to backlash, resentment and the growth of far-right xenophobic populist politics. These can be viewed as more general forms of rejection of broad democratic values and practices.

It will be necessary to understand the dynamics of long-term attitudinal shifts of the scope envisaged by authorities involved in creating the conditions for a more inclusive European society. This will involve looking first in qualitative and quantitative terms at the ideas held by people in relation to the broad concepts utilised in the discourse generated by political and legal measures. What meanings do people attach to terms such as 'human rights', ‘civil liberties’, 'equality', 'race' and 'difference'? How do they make sense of them in the course of their diverse experiences?  How can these concepts be translated into a common legal, policy and enforcement framework?

In the specific case of the Ireland, it may also be worth asking whether experience acquired in the Irish diaspora (of differing forms of governance and from - sometimes conflictual - contact with fellow migrants from other continents) filter back into Ireland? In what ways does this process bolster xenophobia, and to what extent does it establish the foundations of a more open society? If the language of inclusion is interpreted too differently by the various stakeholders, it will become correspondingly more difficult to elicit support for the goals articulated at the upper levels of authority.

The changes in train are fundamental and far-reaching and it is essential to develop and articulate specifically Irish responses – a general point about the post-Amsterdam context noted by Attorney General Michael McDowell at the recent Kinsale Winter School.

Key questions for consideration

1. The issue is not simply one of ‘transferring’ a form of belonging and allegiance from the nation-state to the Union. Indeed, all but the most resolutely pro-integrationist would agree that the Union will not simply be a fractal of the nation-state, a larger version of the same with suitable language about diversity included in the text.

2. There is a related issue of the modalities of governance and the degree of state invention in the affairs of the ordinary citizen which is thought to be acceptable. Clearly this varies from state to state. If the type of state interventionism which is seen as ‘normal’ and compatible with individual freedoms and civil liberties in some existing Member States would be regarded as excessively intrusive by citizens of other Member States (and this has yet to be demonstrated) why should the latter accept such intrusions at Union level?

3. Turning specifically to immigration, the great danger of the new landscape which is now unfolding is that we may merely exchange an ethnonation-state vs. Other dyad for an EU vs. Other dyad. Civil liberties are indivisible. There would be little point in consolidating our place in a common European home if that home, to adapt Mr David Trimble’s phrase, was to remain a cold house for immigrants. The specificity of historical and cultural experience in each Member State is such that some degree of flexibility will have to be retained to enable individual Member States to work out their own path to integration with diversity (both nationally and within the Union), while recognising that on the meta-level such policies do have a interactive effect on neighbouring EU countries. In the case of Ireland we have much to learn from the experience of former colonial powers such as Britain and France, which have been dealing with the reception and integration of immigrants for a much longer period than Ireland. But it does not follow that we should pursue the same policies to the letter.

4. If the Common Travel Area is replaced by Irish and British adherence to the EU acquis in this field, this could radically alter the present situation where in effect Irish policy has tended to follow that of the UK. But a more pro-active and effective Irish input into the formulation of EU policy will then be needed if we are to play our part in working towards a genuine inclusivity in the new European space. This raises issues of internal policy formulation. Much as one might wish it, there is little evidence to date that the Irish Department of Justice, Equality and Law Reform, which follows an almost entirely security-related approach, intends to adopt a broader perspective[9]. Nonetheless that Department’s role cannot be underestimated, as it retains its primacy, not only in defining Irish immigration and asylum policy but also in promulgating broader policies on long-term integration.

Outlook

To sum up, it is likely that the EU, in two to five years’ time, will have common immigration and asylum policies backed up by new policing and security arrangements and an enhanced degree of legal harmonisation. At the same time we can expect to see increased rights for legally resident third-country nationals, particularly in family reunification and freedom of movement. There is a danger that the increasing integration of legal definitions and procedures in immigration, residency and related fields may not be accompanied by appropriate guarantees of individual civil liberties. One has also to surmise that the abolition of the Ireland/UK Common Travel Area and the introduction of national identity cards in Ireland and the UK will at least be placed on the agenda in the event of a general acceptance of the Schengen acquis and in the context of Union competence in immigration and asylum policy. Such additional measures as a Union-wide border control authority with its own police have already been mooted in some quarters[10].

It is possible, of course, that we have already reached what may be termed the limits of the acceptable. We are witnessing what Guild has characterised as the emergence of a post-Weberian, post-Westphalian world, characterised by the increasing erosion of state power because of globalisation and increasing interdependence, as well as the increasing privatisation of functions which were previously thought only to belong to the state – such as, in this case, the verification of identities of would-be travellers and immigrants. Moreover it is a world in which the ability of the individual to evoke supranational rights of one kind or another increasingly challenges traditional assumptions about the primacy of the state (but where the power-relationship between such individuals and states or the Union vary greatly). The very specific types of post-nation-state competences implied by the EU debate on immigration may well elicit a reaction from a state such as Britain that the status quo is as far as they are prepared to go. Such a position would create major difficulties in view of the changes already accepted in the Treaty of Amsterdam.

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