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The implications for Ireland and the UK arising from the development of recent EU policy on migration.Piaras Mac Éinrí, Irish Centre for Migration Studies, NUI Cork.AbstractAfter 2004, in accordance with the terms of the Treaty of Amsterdam, the EU and not the Member States will have primacy in immigration and asylum policy. A common EU policy is likely to emerge over time, accompanied by joint regulatory and enforcement machinery. A start to the implementation of this common policy has already been made through the incorporation of the Schengen arrangements, or acquis, previously intergovernmental in nature, into the Treaty of Amsterdam. It is already applied to a greater or lesser extentin 13 of the 15 existing member states and is a prerequisite for EU entry in the case of all applicant states. However, the UK opted out of Schengen via a protocol to the Treaty and Ireland, in order to preserve its Common Travel Area Arrangement (also known as the Common Travel Agreement) with the UK, chose to follow suit. In the meantime, the post ‘9/11’ climate is significantly influencing the direction and speed of emerging EU policy, with a greater emphasis on security-related measures and a slowing down in the agenda to achieve a common regime. In particular, this is likely to slow down, at least, the achievement of one of the European Commission’s stated goals – a broad equivalence between the rights and entitlements of EU citizens and of third-country nationals legally resident on Union territory. The likelihood is that those measures which emphasise a police- and security-related approach to immigration will be prioritised and fast-tracked at the level of policy, legislation and enforcement while other measures designed to bring about an ethical immigration policy and to facilitate the long-term integration of immigrants within a multi-ethnic Europe are likely to move far more slowly. This short paper seeks to explain the background to EU initiatives in the field of migration policy and to explore what challenges such developments may present for UK and Irish policy. It should be borne in mind that whereas a wealth of documentation from various sources enables the UK situation to be addressed in some detail, sources in the Irish case (whether official, academic or the NGO sector) are inadequate in the extreme. Background: EU migration policy before Amsterdam.In postwar Europe, 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, and they 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. Such approaches were based on the perceived needs of economies and took little account of the social consequences of immigration, either for immigrants or for host societies, while the treatment of individual non-nationals did not in general accord them the same rights as nationals. To a greater or lesser extent these attempts at regulation had to be tempered in practice by a degree of realpolitik. Thus, employers did not necessarily want employees, trained at some expense and familiar with the language and culture of the host country, to be rotated home and replaced by new, untrained and inexperienced workers. Governments and societies found it increasingly impossible to maintain the fiction that Europe had no immigrants when they were to be seen in increasing numbers in all the major regions of northern Europe and more recently even in the south. As immigrants increasingly became long-term and in many cases permanent residents they inevitably became part of broader society, even if the welcome was not always warm. They married, had children, became visible as consumers of social, educational and training, health, housing and other state services, and asserted themselves. Policy and practice gradually had to adapt themselves to these new realities, but this happened only up to a point. Thorny issues such as family reunification continued to prove difficult. Laws regarding citizenship varied widely. Racism and xenophobia increased as European countries, themselves no longer able to recruit sufficient workers within their own territories as economic and demographic change reached the formerly poor peripheries of Europe and intra-EU migration slowed, began increasingly to look further afield for immigrant workers. To some extent they had always done so, arising from the prevalence of colonialism and imperialism in European relations with other parts of the world. But the new challenge of the mid to late 20th century was one of integrating large numbers of workers whose cultural backgrounds were markedly different from mainstream European society. With the slowdown of economic activity after the Arab-Israeli war and the subsequent 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. Moreover, 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 (even though the latter conditions did not qualify the would-be asylum seeker to apply under the terms of the 1951 Convention). In the late 1990s the European immigration debate shifted in a radically new direction. We finally woke up to the fact that an ageing Europe with a diminishing workforce will face economic decline and hardship unless the labour force can be supplemented from outside. Moreover, it is increasingly accepted that immigration can no longer be seen as a temporary phenomenon with no implications for host societies. Yet the acceptance of the notion that permanent immigration is inevitable and even 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. As events in the recent past such as the assassination of Dutch politician Pim Fortuyn have shown, the issue is no longer constructed purely as a ‘racial’ conflict but is often portrayed as a clash between allegedly irreconcilable cultures. The substitution of a discourse of explicit racism by one of cultural exclusion and/or rejection has if anything further complicated the debate. The construction of a discourse of European identity has had the unfortunate result of displacing the border of ‘otherness’ beyond the nation-state to the very borders of Europe itself, so that immigrants are seen by some as the enemy, or at least the other, within. The response to these issues, as will be noted below, was at first at national, not EU, level. However, the rhetoric and finally the practice of a ‘citizens’ Europe’ realised with the 1992 Treaty of Maastricht and with the implementation of arrangements such as the Schengen acquis (more below), laid bare a series of central dilemmas. The EU of free movement was only for EU citizens, not for long-term resident immigrants or other third-country nationals. How was it going to be possible to empower one group and police the other, and was this compatible with an ethical approach to social citizenship and the mantra of a tolerant, multiethnic Europe? Could the EU advance without formulating migration policy at EU level? Existing EU caselaw did offer some protection for immigrants but in many cases the definition of a term such as ‘worker’ was effectively limited to those workers who were also EU citizens. The EU’s Charter of Fundamental Human Rights (adopted at the same conference which agreed the terms of the draft Treaty of Nice) might have been the instrument through which general rights for EU citizens and third country residents could have been defined. Unfortunately the opportunity was lost. As the Commission’s own explanatory documentation points out,
1985 Schengen Agreement and 1990 Schengen Implementing Convention.Given that EU policy on freedom of movement for its own citizens advanced so slowly, it was perhaps inevitable that the first initiatives would be intergovernmental. In 1985 and 1990 the Benelux countries, France and Germany held conferences in Schengen, a border town in Luxembourg. They negotiated a series of new multilateral 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 ‘flanking’ measures, especially in the field of security cooperation (e.g. the Schengen Information System or SIS), were also provided for. For those countries which adhered to these arrangements a common zone of free movement for EU citizens 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. 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 legal implications of Schengen, 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’. At the very least it may be said that this holds out the potential for a radical remapping of traditional assumptions about nation states, citizens and aliens. Unfortunately the measures in place so far do not suggest that Schengen is a step forward in terms of civil liberties or the protection of migrants. Human rights and related objections to Schengen.In spite of the positive aspects, there has been much criticism of aspects of the Schengen acquis from human rights organisations, lawyers, other concerned bodies (including the NCCRI) and academic researchers. Perhaps the over-riding point is that the freedom to cross internal EU borders without showing identity documents has been more than offset by a greatly increased use of other methods of identity control and surveillance within national territories, and that this has been accompanied by a particular focus on immigrants and ethnic minorities. Criticisms may be summarised as follows:
It has been argued that the incorporation of Schengen into the Treaty of Amsterdam (see below) would at least lead to a greater degree of transparency and legal protection compared to the situation which obtained previously. However, the European Court of Justice has only limited jurisdiction and does not cover matters involving internal security and law and order. ‘Hot pursuit’ rights.The following material, drawn from Austrian press reports, illustrates some of the rather unpredictable ways in which Schengen has already impacted on intra-EU relations. It should be mentioned that apart from the hot pursuit issue addressed below a common EU-wide border immigration police service has also been mooted.
It is unlikely that the PSNI and An Gárda Síochána will traverse each other’s jurisdictions with even an Italian degree of impunity anytime soon. From Member State to Union competence: the Treaty of Amsterdam 1997As suggested earlier, 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. Katrougalos quotes one French official in the 19960s, that, "a state ceases to be a state if it does not control the implantation of foreigners on its soil. Specific intra-EU cooperation on any substantive aspects of migration and related issues is relatively recent and was always intergovernmental in character – the Schengen acquis and the 1990 Dublin Convention on the treatment of asylum applications are cases in point. 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, marked the creation of a significant level of Community competence in the field. It may be seen as first step towards the eventual development of a comprehensive Union approach, encompassing policy, law, implementation and enforcement machinery across the whole spectrum of immigration and asylum policy. These are clearly major issues, yet the opt-out by Ireland and the UK effectively excludes them, not merely from the application of the full Schengen arrangements (including sections of the SIS such as Article 96 referred to above), but also from the application of any further measures in this area except insofar as either or both states choose to decide otherwise. It will be evident that this is precisely the type of à la carte approach to Union policy which is anathema to some pro-Europeans. The Treaty of Amsterdam nowThe Treaty of Amsterdam came into effect on 1 May 1999. In immigration-related matters, as noted, the Council will take decisions unanimously on proposals put forward by the Commission or a member state (this last provision is most unusual) for the time being. Qualified majority voting (qmv) does not apply and the Parliament does not have a co-decision role, only the right to be consulted. There has only been limited harmonisation already in free movement, common immigration and visa policies in the following fields
These developments are occurring in a changing environment at European level, which includes the recent economic downturn and an increased emphasis on security arising in part from September 11th. 2004: a further major change?After 2004 the Commission will have sole right of proposal but will still have to consider any request by a member state. It will be obliged to consult the Parliament but, again, qmv and codecision will only apply if the Council decides unanimously to do so – something which appears to contradict the entire concept of co-decision and qmv, as it ensures it will never be used in a contentious area. In reality, therefore, the 2004 deadline may mean not bring about a major shift. The Treaty of Nice will further modify this process, although in relatively minor ways. 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 UK/Ireland Common Travel Area /Common Travel Area Arrangement (CTA).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. British and Irish immigation policy in recent years. High skills good; low skills a necessary evil?; asylum seekers increasingly unwelcome.There are a number of features common to the policies being followed in recent years by the UK and Ireland
Irish policyIn recent years Ireland, with a growing demand for labour immigration, has begun to modify 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. This again raises questions about future harmonisation. Draft new legislation is likely in the next year. British policy: a period of major changeThe UK is one of the magnets within the EU for foreign workers. For those coming from outside the EU, an employer-led work permit system, as in Ireland, is the normal route. Interestingly, the number of permits issued by the UK authorities for non-EU workers is proportionately much less than the Irish figure (2001: 104,000 in the UK, 36,000 in Ireland). UK policy has changed dramatically in recent years. As Spencer puts it, the UK has moved from a position of immigration ‘control’ to immigration ‘management’. In essence, UK policy now recognises the need for managed labour immigration, reflecting employer demand, demographic change, skills shortages and the internationalisation of the market. Public opinion would appear to be well disposed towards skilled labour immigration and attitudes towards all would-be labour immigrants would appear to have shifted in a favourable direction. By contrast, attitudes towards asylum seekers continue to be very negative. New initiatives have been launched in the recent past, including the Highly Skilled Migrants Programme (January 2002), which allows suitably qualified individuals to enter the country and look for work as long as they can support themselves. On asylum seekers, the picture is a very different one. Measures introduced include direct provision, dispersal, carrier liability with heavy fines and detention centres. A speeded up determination process is being introduced. Asylum seekers no longer have the right to work if their cases have not been determined after six months. New arrangements for large-scale accommodation centres and separate educational arrangements for the children of asylum seekers have been proposed. On illegal immigration, the emphasis is on stronger penalties for employers and traffickers, with more frequent checks on those sectors where illegals immigrants are thought to be working. British and Irish views on SchengenAlthough Ireland and the UK, (along with Denmark, which has signed but not applied certain aspects), opted out of Schengen 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. 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. An important concern for both the Irish and British governments arising from the development of EU policy on migration, although not the only one, will be to preserve the common travel arrangements between Ireland and the UK. For instance, the Irish Government has recently stated in a consultation paper that its general position is ‘to participate in EU measures to the maximum extent compatible with the maintenance of the Common Travel Area with the UK’. In contrast to the Schengen 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. 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 is the main reason for the UK/Ireland opt-out. 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. Current UK policy concerns, as set out in Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum may be summarised as follows:
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 comprehensive ‘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. ConclusionsIt is likely that the UK and Ireland will come under increasing pressure to join up fully to Schengen. While there will probably be no change in the near future, such a move would end the opt-out which for the time being insulates the two states legally from all new policies in this field, except insofar as either or both states opt in to part or all of such policies. It would also effectively end the Common Travel Area Arrangement, which has governed the movement of Irish citizens and UK subjects between the UK and Ireland since the 1950s. A move to adopt the Schengen acquis in the UK and Ireland would have radical civil liberties implications because of the very different legal systems found in common-law and continental codes. The protection afforded by habeas corpus is not the only factor, although not the least important either, which comes to mind. Measures which would be likely to be put forward include the introduction of national identity cards and continental-style policing of a more intrusive character, including stop-and-search, increased surveillance of immigrants and other police powers, ever closer cooperation in data exchange and more radical measures such as hot pursuit and cross-border surveillance, already in place in between some continental countries, and ultimately the development of a common border immigration police service. Unless accompanying measures guaranteeing civil rights and individual liberties are also introduced – and the omens are not favourable – the net effect will be to reinforce the creeping marginalisation of immigrants and of persons of immigrant origin born within the EU. Texts Consulted (not exhaustive). Please note that some documents are in Acrobat format and require a (free) software application, which can be downloaded from www.adobe.com.
©Piaras Mac Éinrí 2002. The views expressed are the author's alone. With thanks to the National Consultative Committee on Racism and Interculturalism (Ireland) and the Joseph Rowntree Charitable Trust (UK) for funding and support. A hardcopy version of this article appears in 'Migration Policy in Ireland', published December 2002 by the NCCRI, with other contributions from Anastasia Crickley (NCCRI), Philip Watt (NCCRI), Jan Niessen (Migration Policy Group, Brussels) and Sarah Spenser (migration policy advisor, UK). |
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