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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All smoke and no fire in the EU strategy towards the eradication of trafficking in human beings

 

Dr Matilde Ventrella, Senior Lecturer in Law, University of Wolverhampton (UK)

 1.       Introduction

On October 17^th, the European Commission published the mid-term Report on the implementation of the EU strategy towards the eradication of trafficking in human beings (THB) and a Communication on the application of Directive 2004/81 on the residence permit issued to third country nationals who are victims of human trafficking or the subject of an action to facilitate illegal immigration and who cooperate with competent authorities.  In this analysis, I will first examine the mid-term report, I will then examine the Communication on the application of Directive 2004/81 and I will draw my final considerations.

2.       The mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings

The Report focuses on the policies and laws that the EU is implementing and on the progress made from 2012 to the third quarter of 2014. 

The Commission’s report states that the first step to take in order to address THB is implementing Directive 2011/36/EU on the criminal law aspects of the issue. This Directive, for the first time, recognises THB as a gender specific phenomenon and that women and men are often victimised for different purposes (paragraph 3).  The Directive requires Member States to investigate and prosecute perpetrators (Article 9) and to give adequate protection to victims.   The mid-term Report emphasises that 25 Member States have communicated the transposition of the Directive in full and it states that Member States shall take full responsibility to eradicate this serious criminal activity.  Their priority should be identifying victims and giving them adequate protection.  The Commission has clearly explained how victims should be identified by publishing the “Guidelines for the Identification of Victims of THB”.  The Guidelines stated that the early identification of victims is crucial as it enables investigative and police authorities to better investigate THB and prosecute the perpetrators.  For this purpose, consular services and border guards should offer regular training to their officers to enable them to identify victims and potential victims.  The Guidelines also stressed that consular services and border guards should consider cooperation agreements to facilitate the identification of victims.  The Guidelines emphasised that cooperation should be developed with organisations such as Non-Governmental Organisations and special attention should be given to child victims of THB. 

Also, the mid-term Report explained that adequate protection to victims could be given by demand reduction and awareness-raising programmes.  Particular attention should be focused on combating violence against women and gender inequalities as these are root causes of THB.  The Commission has launched a study on the gender dimension of THB which should be published in the second half of 2015.

Since THB is a serious form of organised crime, the Commission called for cooperation and partnership between EU Member States.  The Commission encouraged ‘Member States’ operation in the field of internal security’, the support from Europol to Member States’ action and the adoption of ‘annual operational action plans on each priority area identified by the Council’.  The Council has identified THB as one of the priority of the EU Serious and Organised Crime Policy Cycle.

The report also pays particular attention to civil society.  In the Commission’s view, it is essential to involve civil society and for this purpose, it launched in 2013 the EU Civil Society Platform against THB in Member States and selected non-EU countries.  The Civil Society Partnership meets every 2 years, bringing together over 100 civil society organisations specialised in THB in Member States and four non Member States (Albania, Morocco, Turkey and Ukraine). 

Finally, the Commission called for more cooperation between EU Member States and non-European countries in order to identify all forms of THB.  The Commission referred to an action oriented paper (AOP) adopted by the Council in 2009.  The AOP emphasised the importance of dialogue with third countries to fight against THB and it supported ‘international effort in this field advocating at various UN fora the prevention of THB, THB victim protection and assistance’... ‘international cooperation and coordination on THB’.  The AOP also highlighted that EU agencies such as Eurojust, Europol, Frontex and FRA should be consulted when the EU takes action to cooperate with non-EU countries to fight against THB.  

The Justice and Home Affairs (JHA) agencies (CEPOL, Eurojust, Europol, the European Asylum Support office (EASO), the European Institute for Gender Equality (EIGE), FRA and Frontex) have annexed to the Commission mid-term Report, a joint action report carried out in between October 2012 and September 2014.  The Annex stated that these agencies should work together ‘in a more coherent and comprehensive manner, taking synergies and avoiding duplication of effort’.  However, the Annex did not explain clearly how they have to undertake their tasks.  The Report explained that JHA agencies shall have the aim of dismantling criminal groups in cooperation but there is not any concrete proposal.  In other terms, the Annex simply explained that all the JHA agencies have done, was organising meetings, trainings and conferences but no concrete actions against criminal organisations have been undertaken.

 JHA agencies were established for different purposes.  Consequently, I believe their tasks should be clearly differentiated.   Example: the European Asylum Support office (EASO) should not have the same tasks as Europol because the EASO was set up to improve the implementation of a Common European Asylum System, whilst Europol was established to support Member States’ investigation of cross-border crime.  The Annex did not explain how these agencies should fulfil their objectives and how they should ensure coordination while avoiding overlapping.    I believe that the JHA agencies should have pushed for reforms.  The Annex should have explained whether it is desirable to reform Europol’s scope, in order to strengthen cooperation with non European countries as THB is a cross-border crime committed in the EU and outside the EU.  It has been reported that migrants smuggled by sea are exposed to THB during their trips and when they reach their countries of destination.  This is because they cannot repay the price of their journey.  Therefore, they are threatened by their smugglers and eventually they become victims of THB (see reports by the UN, the IOM and the Global Initiative).  Furthermore, recent research undertaken by Italian journalists has found out that people smuggled by sea are often victims of traffic of organs since, when they cannot repay the price for their journey, they are left with no choice than selling their kidneys and corneas to smugglers.  What role should JHA agencies play in detecting these dangerous criminals within and outside the EU?  The Commission’s mid-term Report and the JHA agencies’ Annex, are full of good intentions and fine words but they are inconclusive, as there are no concrete proposals.

The extent of THB remains unknown, in particular the number of victims of smuggling who eventually become victims of THB and traffic of organs.  However, the Commission mid-term report published, for the first time, statistical data on victims and traffickers for the years 2010 to 2012.  These data are based on the Statistical Working Paper published by Eurostat.  The working paper provided data based on the total of victims or ‘presumed victims’ identified by the Member States.  Presumed victims are those people who have met the criteria to be identified as victims on the basis of Directive 2011/36/EUbut who have not been formally identified by relevant authorities or who have refused to be identified as such.  According to the data, it is estimated that over the years 2010-2012, 30.146 victims or presumed victims were registered in the 28 Member States.  80% of registered victims were female, 45% of victims were of the age of 25 or older, 36% of registered victims were aged 18-24 years old, 17% of victims were in between 12-17 years old and 2% of all victims accounted children aged 0-11 years old.  However, THB concerning EU citizens prevails in the statistics and only victims from five non EU countries were identified (Nigeria, China, Brazil, Russia and Algeria).  Victims who are hiding within Member States or who have been smuggled by sea and eventually have become victims of THB, have not been identified.  The number of these people remains unknown.  The Commission’s report stated that it is a priority to identify victims but only by reinforcing investigations within the EU and outside the EU, victims can be seriously identified.  Understanding the links of criminals can facilitate the identification of victims coming from many African countries.  Nevertheless, no steps have been taken in this direction. 

3.       Analysis of the Communication from the Commission on the application of Directive 2004/81

The Commission analysed how Directive 2004/81 has been implemented by Member States.  The Directive states that victims of THB and victims of smuggling of migrants may be granted a residence permit if they decide to cooperate with law enforcement authorities to contribute to detect criminals.    However, in the case of smuggling, EU Member States retain the discretion to apply the Directive.   The issue of a residence permit is limited to cases where the victims are willing to cooperate with police. However, Member States have the option to grant a residence permit to all victims, even if they are not willing to cooperate. The lack of an obligation to grant a residence permit in cases of non-cooperation is inconsistent with Directive 2011/36, which requires Member States to give THB victims support and assistance even if they are not cooperating with the police.

The Commission stated that it is very important to identify victims ’for the effective application of the Directive’ and inform them of their rights ‘to initiate a recovery process and to reflect  before deciding whether to cooperate with the authorities’.   However,  the Commission has reported that, in the legislation of Member States, it is unclear whether the information is provided to officially identify victims or also to presumed victims.  I think presumed victims should be given the information as it could be a way to give them the opportunity to escape from the traffickers and start a programme of recovery.  

The Commission has also reported that Member States are issuing low numbers of residence permits in exchange for cooperation and, only in exceptional circumstances, the residence permit is issued beyond the willingness of victims to cooperate.   When I interviewed police officers and members of the civil society in Rimini (Italy), I found out that THB can be seriously defeated if victims and presumed victims are granted an unconditional residence permit.  This is because such a residence permit is reassuring and it puts victims and presumed victims in the position to report the criminals without any constraints.  In addition, an unconditional residence permit will interrupt the vicious circle victims become trapped in, when the investigations are concluded and their residence permit expires.  They become vulnerable and again easy targets for traffickers.  Conversely, victims with an unconditional residence permit will integrate in the new society and will not be vulnerable to trafficking anymore.  By adopting this method, police authorities in Rimini have defeated THB and police authorities in Siracusa (Italy) have detected some criminal organisations smuggling people from Egypt to Italy. Police authorities in Siracusa explained that the whole phenomenon of smuggling of migrants by sea cannot be defeated by isolated actions of national police as it requires investigations outside the EU and they would welcome more involvement of JHA agencies.

 The Commission is very concerned about the rare use of the issue of an unconditional residence permit and intends to engage in bilateral exchanges with Member States in order to improve the correct application of the Directive.  It also intends to implement the Task Force Mediterranean established in 2013 with the aim to prevent the death of migrants at sea.  This is very welcome as it seems that finally, the strong connections between THB and smuggling of migrants by sea have been fully recognised.  However, even the Communication on the Task Force Mediterranean is disappointing because it is not clear what concrete action and external cooperation agencies such as Europol and Eurojust can take in the fight against these two crimes.  It promoted cooperation with third countries and a global approach on immigration but no reforms have been proposed. 

4.       Conclusions 

The Commission reports have depicted a situation within Member States which will not contribute to defeat or at least reduce THB.  Furthermore, in the Communication on Directive 2004/81, the Commission has reported how Member States are neglecting to issue residence permit to victims of THB.  The Commission has shown its intention to ensure the situation improves and one hopes progress will be made in the issue of residence permits.

It is also believed that agencies such as Europol should be given relevant investigative powers within the EU and outside the EU.   I am aware that a reform as such requires the consent of Member States as it can be adopted on the basis of Article 87 of the Treaty on the Functioning of the European Union (TFEU).  However, Member States only seem focused on protecting their borders as if the fight against THB would not contribute to protect their borders by reducing irregular migration!  Italy has communicated that the Mare Nostrum Operation will be suspended and other Member States are not making efforts to prevent this suspension by cooperating with Italian authorities in rescuing and hosting migrants at sea.  Not only there is no willingness to cooperate in investigations and grant residence permits to victims, but Member States do not even want to rescue migrants at sea from drowning.  If this situation will continue, victims of THB will increase as will the number of victims of the connected crime of smuggling of migrants by sea.

 Barnard & Peers: chapter 26

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