The new EU Migration Agenda takes shape: analysis of the first new measures

Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda(previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previously here on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidanceon the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception Conditions Directive. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’tpicked by new parents, there will be rather more asylum-seekers disappointed that they were not selected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.  

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.

Barnard & Peers: chapter 26

Photo: GlobalNation.Inquirer.net

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The Commission’s new EU Migration Strategy: Waiting for the Great Leap Forward

 

Steve Peers

Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.

Content

The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.

Immediate action

The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.   

However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.

Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.

Irregular immigration

First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).

Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.

Border management

Commission proposals here largely urge more implementation of existing EU rules. The only concrete initiative is a commitment to relaunch the EU’s ‘Smart Borders’ proposals, for an entry-exit system of non-EU nationals, by the start of 2016. But the Commission was planning to do this anyway.

Asylum

The second phase of EU legislation on asylum is partly applicable already: the ‘qualification Directive’ on the definition and content of refugee and subsidiary protection status should have applied from the end of 2013, and the ‘Dublin III’ rules on asylum-seeker responsibility applied from the start of 2014. The other revised rules, on the ‘Eurodac’ system, asylum-seekers’ reception and asylum procedures, apply from July 2015 already.

The Commission promises to focus on implementation of these laws, by issuing guidance documents and prioritising infringement procedures against Member States which do not apply the law properly. It will also review the Dublin system in 2016, and may suggest proposals to speed up processing in cases involving safe countries of origin.

Legal migration

The Commission supports a legal migration policy based on demographic needs to increase the working-age population in the EU. It will conduct a ‘fitness check’ of existing legislation, and encourages swift agreement on its proposal on students and researchers, which has nearly been agreed by the Council and EP (for analysis of this proposal, see here). Also, by the end of May, it will review the ‘Blue Card’ legislation on admission of highly-skilled migrants, referring particularly to attracting investors and increasing mobility between Member States (on implementation of the current law and the issues for reform, see here).

The Commission also suggests a new initiative, to adopt rules on the provision of services by non-EU citizens. There are already provisions on this issue in EU free-trade agreements, but the Commission wants standard rules for all non-EU citizens. An important point here is that these rules should at least in part apply to all Member States, since they concern international trade, an exclusive EU competence which is not subject to any opt-outs.  Arguably that exclusive competence applies to market access issues as distinct from the related immigration rules, where opt-outs should still apply, but this may need to be clarified.

Finally, the Commission refers to visa policy, namely its existing proposal to amend the EU visa code and its pre-existing plan to review the list of countries whose nationals require a visa.  It also suggests giving a modest amount of extra cash to third countries as regards migration management.

Long-term objectives

Without offering a data, the Commission outlines longer-term objectives in three areas. As regards asylum, it suggests that there could be a common code of EU asylum law, mutual recognition of asylum decisions, and a common decision-making process. It is not clear if the latter would involve the Commission or another EU body making asylum decisions, and/or a common court reviewing asylum appeals (following the model of the EU’s planned patent court).

Secondly, as regards border control, the Commission reiterates long-held goals of a common EU border guard, or at least a common coastguard.

Finally, as regards legal migration, the Commission suggests an EU-wide expression of interest system, so that people are applying to all Member States for a job, not just individual States.  

Comments

The Treaties refer to a ‘common’ EU policy on immigration, asylum and border control. But the Commission’s proposed agenda does not start from that final objective and ask itself what is necessary for the EU to achieve it. Rather it starts from the status quo and asks what incremental changes need to be made to it to address specific issues.

On the immediate question of addressing the migrant crisis, the strategy paper essentially implements what EU countries already agreed, apart from the relocation and resettlement proposals. The relocation proposals in particular are probably politically unrealistic, given that Member States over the years have repeatedly refused to adopt binding rules on this issue.

The resettlement proposals are less unreal, since the Commission plans to start with a non-binding measure backed up by extra EU money, which should attract Member States to offer resettlement opportunities. Only if that does not work would the Commission take the unrealistic step of proposing binding rules. This part of the plan is particularly welcome, since it would reduce the number of migrants in need of protection who undertake the unsafe journey to the EU in the first place. However, the numbers involved compared to the totals undertaking that journey are likely to be tiny: the Commission proposal of 20,000 a year by 2020 is modest enough (there were over half a million asylum applications in the EU last year) but is unlikely to be agreed by Member States.

On smuggling legislation, more could be done to exempt humanitarian activities clearly from the rules, but changing the law alone will not stop smugglers. On the other hand there are many legal, political and practical problems facing the EU’s plan to destroy migrant boats. The plan is opposed by the de facto authorities in Libya – the very people whom the EU has to work with to solve the conflict in Libya in the first place.

The plan as regards returns legislation is to make the current rules work more effectively, by agreeing more readmission treaties and carrying out more removal operations. But coupled with the plan to amend asylum law to fast-track assessment of applications from supposed ‘safe countries of origin’, there is a risk that people will be removed to unsafe countries before their need for protection has been properly assessed.

Also as regards asylum, there is a focus on applying existing rules. In principle, this could lead to a significant increase in the degree of harmonisation between Member States, since the second-phase asylum rules have eliminated a lot of the legal divergences that the earlier phase of EU asylum law provided for. However, it depends on the political will of the Commission, which has promised to enforce EU asylum law many times before – and failed to do so every time. There’s no detail of how the enhanced focus on infringement proceedings will work, and until there is, this looks like a promise the Commission is making with its fingers crossed behind its back.

As regards legal migration, more admission of highly-skilled migrants and service providers in areas of economic need would be useful, and admission of tourists, researchers and students could boost the EU economy. Some of the measures to this end are already under discussion. But the Commission makes a fairly weak commitment as regards the enforcement of other EU legislation on legal migration, given that (for instance) many non-EU citizens face barriers to family reunion, and the Commission reported in 2011 that EU laws on long-term residents are not properly applied by Member States.

Finally, the Commission’s long-term plans are interesting but plans along these lines (particularly as regards border guards) have been rejected before by Member States. A particular disappointment here is the failure to suggest early adoption of rules on the transfer of protection of refugees who move between Member States, given that some refugees already have the right to move between EU countries and there is an existing Council of Europe treaty setting out rules on this issue that the EU could use as a template (see the ECRE report on this issue).

On the whole then, the Commission strategy paper is largely a repackaging of things which the EU is already committed to doing or already negotiating, or which are already in place. It shouldn’t be necessary to adopt plans to enforce rules which are already the law, and the intention to do so simply exposes the previous failings of the Commission on this score. It remains to be seen if issuing ‘guidance documents’ has any useful effect in practice (the Commission should commit itself to an independent review of this), and the promises relating to infringement proceedings mean nothing until the Commission tells us what this means, and regularly and openly reports on its practice to this end. The plans for further legislation in the near future are essentially modest, but in places (fast-track asylum assessment and expulsions, directly to more countries of origin) raise serious potential human rights concerns. And the strategy paper concludes with the legal equivalent of a flock of flying pigs.

All this will ultimately lead to another series of modest steps forward toward a common EU policy on borders, immigration and asylum. But it falls short of the significant changes that could be made if there were enough political will in the Commission and the Member States.

 

Barnard & Peers: chapter 26

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The Blue Card Directive on highly-skilled workers: why isn’t it working, and how can it be fixed?

Steve Peers

Back in 2009, the EU adopted the so-called ‘Blue Card’ Directive on highly-skilled third-country nationals.  This Directive is a key part of the Commission’s policy plan on legal migration, which subsequently also led to the adoption of the single permit Directive, the seasonal workers Directive and the intra-corporate transferees Directive.

According to its preamble, the Blue Card Directive aims to ‘attract and retain’ highly-skilled workers from the rest of the world to the EU. This objective is obviously an essential aspect of the EU’s labour migration policy. However, the Commission’s recent report on the Directive indicates that it has made little impact at achieving its intended objectives. So it is necessary to consider how the Directive ought to be amended to achieve them.  

Implementation of the Directive

The Directive had to be applied by 19 June 2011, and all Member States bound by the Directive (the UK, Ireland and Denmark opted out) ultimately implemented it (twenty Member States applied it late). So the question is now whether they have implemented it correctly, and what its impact has been.

In practical terms, its impact has been limited, with only 3,664 Blue Cards issued in 2012, and 15,261 issued in 2013. Most have been issued by Germany and Luxembourg, and the main countries of origin are India, China, Russia, the USA and Ukraine.

A key feature of the Directive is that it co-exists with national schemes for attracting highly-skilled migrants, and most Member States have such schemes. In most Member States, these national schemes attract more migrants than the Blue Card system, although there are exceptions (such as Germany, Luxembourg and Romania) where the Blue Card is more attractive than the national system.

Overall, national systems attracted nearly 20,000 applicants in 2012, over five times the number of Blue Cards issued in that year. However, as seen above, the number of Blue Cards issued in 2013 increased significantly; but there are no statistics on national schemes available for that year to indicate whether a significant number of applicants were changing from national schemes to the Blue Card system.

The number of Blue Card holders can be affected in several ways. First of all, Member States have an option to set a quota for the number of admissions, and eight Member States have exercised it. Secondly, in order to avoid ‘brain drain’, Member States can enter into treaties with third states or opt to reject applications in national law on these grounds. No Member States have taken up the former option, and six have taken up the latter one, although none have actually rejected an application on these grounds. Given the low number of Blue Cards issued, the Commission is therefore surely right to conclude that for now, there is no indication that the Directive has led to a brain drain.

Thirdly, only two Member States have set higher salary thresholds than the usual rule (1.5 times the average salary) set in the Directive. Fourthly, most Member States apply some kind of labour market test before issuing a Blue Card. Fifth, while the Directive implicitly allows for renewal of Blue Cards, one Member State (Sweden) has set an overall time limit of four years for Blue Card holders, even though there is no explicit rule in the Directive on this point (as compared to the Directives on seasonal workers and intra-corporate transferees).

Next, fifteen Member States have implemented the option to withdraw the Blue Card if the holder needs social assistance, and two Member States applied a pre-existing national rule requiring applicants to apply from outside the country of origin. About half the Member States require a 90-day wait for a decision on the application, and just under half set shorter deadlines. Nine Member States do not grant equal treatment in employment after a two-year waiting period, and most require authorisation in the event of a change in employer within that period. A number of Member States do not grant equal treatment in education, and about half of the Member States limit the application of a rule permitting longer absences from EU territory as regards acquiring long-term resident status.

There are also options for Member States wishing to apply more favourable rules. Twelve Member States have opted to treat experience as equivalent to qualifications. Nine Member States have set a lower salary threshold (1.2 times the average salary) for professions in shortage occupations. Most Member States allow applicants to apply for a Blue Card not just if they are legally resident, but also if they are legally present. Several Member States have more favourable standards as regards equal treatment.

Overall, the Commission concludes that it is too early to assess the actual impact of the Directive in terms of attracting highly-skilled applicants. It is concerned about ‘flaws in the transposition, the low level of coherence, [and] the limited set of rights and barriers to intra-EU mobility’. To that end, it issues veiled threats about possible infringement proceedings, but it does not intend to propose amendments to the legislation for now.  

Comments

What is the right immigration policy to attract highly-skilled migrants? In my assessment of this Directive in the Commentary on EU Immigration and Asylum Law, I examined the evidence in the Commission’s original impact assessment for this Directive, which suggests that the EU is comparatively weak at attracting highly-skilled migrants, in part due to its immigration regime. The main features of national immigration rules which attracted migrants were routes to permanent residence, geographical mobility, and the publicity effect of the schemes. Academic analysis also suggests that liberal rules on family reunion and job mobility are significant.

However, the main elements of the Blue Card proposal which aimed to attract highly-skilled migrants were dropped or watered down: a short decision-making deadline; a derogation from the salary threshold for younger workers; and the rules on in-country applications, job mobility and validity of permits.

The evidence as regards implementation of the Directive suggests that on most of these issues (except for in-country applications), most Member States apply the options in the Blue Card Directive in such a way as to deter applications. Moreover, the mere existence of competing national schemes dilutes the publicity effect of the Blue Card system.

Due to late implementation of the Directive and the absence of national statistics for 2013, it is too early to tell whether the use of national schemes for admission of the highly-skilled has actually declined following the implementation of the Directive. However, it is clear that the numbers admitted under the Blue Card system that year were less than the numbers admitted under national systems the year before. So it is clear that the Blue Card system has not by itself, at least initially, increased the total numbers of highly-skilled migrants entering the EU.

Interestingly, as discussed in a previous blog post, one of the candidates for Commission President, Jean-Claude Juncker, has specifically promised to re-examine this Directive, with a view to addressing demographic imbalances, providing a safe route to Europe and increasing the EU’s attractiveness to highly-skilled migrants.

What is the best route forward to this end? To increase the publicity effect of the scheme, it would be advisable to curtail or eliminate competing national schemes. To increase its attractiveness, it would be best to provide for: in-country applications for everyone legally resident or present in all Member States; shorter decision-making deadlines; a derogation from the salary threshold for younger workers; stronger rules on equal treatment as regards access to education and employment; a longer validity of initial permits; and flexibility to switch into self-employment, particularly if the migrant wants to establish a job-creating business. 

Member States would still be able to address social and economic concerns about migration by their power to set quotas on labour migration (which is guaranteed by the Treaties) and to require a labour market test before issuing a Blue Card; and they still could use the options available in the Directive, if necessary, to prevent a brain drain from developing countries.

Whoever ends up in charge of the European Commission this autumn should move forward at an early stage to relaunch the EU’s flagship labour migration policy.   

Barnard & Peers: chapter 26

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