Explaining EU Cooperation on Illegal Migration and Human Trafficking

Transcription

1 6th Biennial Conference of ECSA-C (European Community Studies Association - Canada) What Kind of Europe? Multiculturalism, Migration, Political Community and Lessons from Canada Victoria, B.C. Canada, Friday-Saturday May ème Conférence biennale de l Association d'études sur la Communauté Européenne (AECE) Quelle Europe? Multiculturalisme, migration, communauté politique et l exemple du Canada Victoria (Canada) le vendredi et samedi mai 2006 Explaining EU Cooperation on Illegal Migration and Human Trafficking Willem Maas Politics and European Studies New York University 285 Mercer Street, 7th Floor New York, NY Starting July 2006: Department of Political Science Glendon College, York University 2275 Bayview Avenue Toronto, ON M4N 3M6 Since this paper is a draft (really more of a think-piece than a polished work), please don t cite without permission. Indeed, if you send me a message, I ll send you any updates made since this (very preliminary despite the best of intentions, I ran out of time) draft. Thank you. 1

2 With increased migration comes the challenge of combating illegal immigration and human trafficking, including to avert the human tragedy that is a frequent consequence. -- European Commission, November 2005 The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. Introduction -- Treaty Establishing a Constitution for Europe, Art III-267 Preventing illegal immigration is one of the three elements alongside managing migration flows and treating third country national residents fairly of the emerging common European immigration policy. In the next few months, the European Commission is expected to release a Communication on irregular migration. This follows the creation earlier this spring of rapid reaction teams to assist member states facing exceptional migratory pressures, increased cooperation between member states immigration liaison officers posted abroad, last December s Action Plan on legal migration, the Communication on priority actions for responding to the challenges of migration the month before that, and a raft of other initiatives. Observers of these developments might be excused for thinking that all this activity results from a recent change in EU policy or a reaction to recent world events. While events are often the key catalyst for changes in the political salience of issues, and thus the ultimate cause of changes in policy, institutions mediate and shape the nature of the reaction to events. 1 In this paper, I argue that integration-minded actors within Community institutions particularly the Commission and Parliament have long wanted to develop a common European immigration policy. Unable because of member state opposition to infringe on such a cornerstone of state sovereignty, they have had to content themselves with ambitious-sounding but ultimately toothless statements. The issue of illegal migration, however, affords a perfect opportunity for encouraging European integration. 1 Former British Prime Minister Harold Macmillan, asked by a young journalist what can most easily steer a government off course, famously answered Events, dear boy. Events. 2

3 This is because illegal migration has come to be seen everywhere as a bad thing that should be combated. In the context of the free movement regime represented by the removal of border controls within the Schengen zone, the potential gains to cooperation on illegal immigration appear more obvious. This means that cooperation on illegal migration together perhaps with cooperation in matters of refugees and asylum seekers can be seen as the first step towards the formulation of a common European approach to migration more generally. History of EU Cooperation on Irregular Migration A clear distinction between the rights of Community citizens and those of third-country nationals has been present since the postwar origins of European integration. 2 But thirdcountry migrants have also always evaded and circumvented legal restrictions on their residence and work within member states. In other words, member states have never been able to fully control either their borders or the labour market. As labour migration grew in importance, the numbers of illegal or irregular migrants grew correspondingly. This was particularly true after European and other states reduced in the 1970s the legal means of immigration. The response of the international community generally focused on the rights of workers. In late 1972, for example, the United Nations General Assembly expressed its deep concern at the de facto discrimination of which foreign workers are the victims in certain countries of Europe and of other continents, urging states to combat illicit trafficking in foreign labour, which is a form of exploitation, and to strengthen the protections for migrant workers. 3 Similarly, in 1974 the General Assembly urged all states to promote and facilitate by all means in their power the adoption of bilateral agreements which would help reduce the illicit traffic in alien workers, and to adopt the appropriate measures to ensure that the human rights of workers who enter their territory surreptitiously are fully respected. 4 In 1976, the Commission proposed adirective. The proposed Directive was beneficial to and protective of workers rights. 5 The idea was that, by raising the costs of irregular labour to the same level as the cost of legal workers, employers would lose any incentive to hire irregular workers. Once it had been discussed, however, the proposed Directive languished. In subsequent years, the European Council declined to pursue the proposed Directive, for reasons that are not entirely clear presumably a lack of Willem Maas, "The Genesis of European Rights," Journal of Common Market Studies 43 (2005). G.A. Resolution 2920 (XXVII) of 15 November G.A. Resolution 3224 (XXIX) of 6 November Compare COM(1974) 2250 of 18 December Action Programme in Favour of Migrant Workers and Their Families. COM(1976) 331. Proposal for a Council Directive on the Harmonization of Laws in the Member States to Combat Illegal Migration and Illegal Employment. 3

4 political will in the member states, which the Community institutions lacked the legal competence to override. 6 Illegal migration into European states continued to grow during the 1970s and into the 1980s, despite the adoption of a Council of Europe resolution on combating clandestine immigration and the illegal employment of foreign workers. 7 Strikingly, however, the focus of international agreements did not shift to penalizing illegal migrants but remained on safeguarding the rights of migrant workers. In 1984, for example, the Parliamentary Assembly of the Council of Europe invited member governments to contemplate, as a first step, regularisation of the situation of migrant workers who have already settled, but only as an exceptional and non-renewable arrangement. 8 It also advocated laying down severe administrative and penal sanctions for employers of clandestine workers, intermediaries and traffickers, so as to impose the same charges on all firms and to prevent illicit migration by providing equal treatment and working conditions for migrant workers. 9 The resolution targeted employers, intermediaries, and traffickers for sanctions, but spared the migrants themselves. This was because, in the opinion of the parliamentarians, clandestine migrant workers are the victims of a process created by many combined factors, inter alia the needs of certain employers in the host countries, the role played by those engaged in trafficking in labour, and the need for all migrant workers to escape from poverty in their country of origin and earn a living 10 Portraying migrant workers as victims rather than purposeful agents served to legitimize their continued presence in countries of destination, while blaming traffickers and employers for creating or abeting the problem. Moreover, many international observers castigated states for creating a problem out of migration phenomena which had hitherto not been seen as problematic. Thus the Council of Europe lamented the fact that, under the pressure of xenophobic movements, the authorities in certain host countries have been induced to take administrative measures, the effect of which was that situations not previously irregular actually became irregular, and newcomers were subjected to procedures taking no account of fundamental human rights 11 The lack of Community legal competence in the field of migration continued until the Maastricht Treaty in During the 1980s, however, the ad hoc immigration group and Ryszard Cholewinski, "European Union Policy on Irregular Migration: Human Rights Lost?" in Irregular Migration and Human Rights: Theoretical, European and International Perspectives, ed. Barbara Bogusz, et al. (Leiden, 2004), 166. Committee of Ministers Resolution 78 (44) of 26 Oct 1978 on clandestine immigration and the illegal employment of foreign workers. 4

5 Schengen cooperation raised the stakes. 12 But governments wished to retain control over decisions concerning third country nationals. Schengen provided a key impetus for cooperation between member states, but this started as intergovernmental cooperation rather than being led by Community institutions. Maastricht 1994 Com on asylum and immigration Amsterdam Study on the links between legal and illegal migration. 13 In its resolution in response to the study, the European Parliament reproached the Council for not defining a common immigration policy, rejected the idea of remote camps to process immigrants, advocated improving the situation of immigrants illegally employed in domestic service, and held that mass regularization programs should be one-off events rather than solutions to the problem of illegal migration. 14 Green Paper on an EU approach to managing economic migration. 15 An active policy on legal migration and integration will, at the same time, be accompanied by a strong approach to fighting illegal migration. The European Union will continue its comprehensive dialogue with third countries aiming to improve migration management, addressing the root causes of illegal migration, promoting legal migration opportunities, fighting illegal migration and trafficking of human beings. 16 Implications: A Common EU Immigration Policy? In purely demographic terms, if they are to maintain stable populations then European states either need to increase their birthrates or admit large numbers of immigrants. As the table below shows, every single EU member state and applicant country (with the sole exception of Turkey) now has a birth rate below replacement rate of 2.1, and the situation is particularly grave in the new member states of central and eastern Europe Willem Maas, "Freedom of Movement Inside Fortress Europe," in Global Surveillance: Borders, Security, Identity, ed. Elia Zureik and Mark B. Salter (Devon UK, 2005). COM(2004) 412. European Parliament resolution on the links between legal and illegal migration and integration of migrants, 9 July Bulletin EU , COM(2004) 811. COM(2005) 645, p.8. 5

6 Birthrates, EU member states and applicant countries Turkey Croatia Ireland Greece France Germany Denmark Hungary Luxembourg Italy Finland Lithuania Netherlands Spain Belgium Latvia UK Poland Sweden Romania Cyprus Bulgaria Malta Slovenia Portugal Slovakia Austria Czech R Estonia Conclusions It is at least mildly puzzling why EU member states cooperate on issues of illegal migration, when they do not cooperate on issues of legal migration. In other words, member states continue to set their own policy priorities regarding which migrants to admit, for how long, and for what purposes. But they are moving towards a common approach to illegal migration at least that is the direction of current developments. How should we explain this development? In this paper, I argued that integration-minded actors within Community institutions most notably the Commission, supported by the Parliament have seized upon the promise of security as a means of promoting a common approach to illegal migration. Cooperation on illegal migration can then be expected to spill over in a nice, functionalist way to cooperation on other forms of migration. That, at least, is the logic of current developments. But that conclusion needs more than a slight caveat. A key impediment to a truly European migration policy is that member state priorities for migration remain very far apart. Another is that Community institutions possess no capacity whatsoever to control common borders or process migrants. Unless and until member states agree on common policy goals for migration which in turn would necessitate political agreement within the member states a truly European migration policy seems very far off in the future. 6