Migration Governance

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1 Migration Governance 11

2 The Changing Geography of International Migration in the 21st Century Rainer Münz, Reseach and Knowledge Center of Erste Bank, Austria What can we expect for international migration and mobility over the next decades? More countries will soon enter the global race for talent and skills. China, for example, is already actively searching for highly qualified experts from abroad, although numbers are still relatively small. In a not-so-distant future, China s declining working-age population might also create a demand for semi-skilled and low-skilled labor, effectively turning it from a migrant-sending into an immigrantreceiving country, competing with Europe, North America and Australia for workers and skills. Economic growth has shifted from the advanced economies to middle-income and low-income countries. According to IMF figures the average gross domestic product (GDP) growth of advanced economies decreased from 2.9% per year ( ) to 1.8% per year ( ), whereas in emerging markets annual growth increased from 3.6% ( ) to 6.1% per year ( ). This has practical implications for today s and tomorrow s migration patterns as former sending countries gradually turn into destination countries. Empirical analysis for the first decade of the 21st century shows that on average only countries with a gross national income (GNI) per capita below US$ 9,000 had a negative migration balance. As GNI in many middle- and low-income countries increases, the future geography of migrant-sending countries will be affected by this economic growth. At the same time, many immigrant-receiving countries of the Northern Hemisphere are encountering slow economic growth or even recession; and unemployment rates are well above historical averages. This makes them less attractive for labor migrants and their dependent family members and has already changed the direction of migration flows. For example, European countries most affected by the financial and economic crisis, in particular Ireland, Greece, Portugal and Spain have recorded more emigration than immigration since the year The improving economic situation in capital cities and other urban agglomerations of many traditional migrant sending countries has created domestic alternatives to international migration. Usually this has to do with declining population growth as well as industrialization and the emergence of urban service sectors absorbing rural migrants. The impact on international migration is clearly visible: For example, Mexico and Turkey for decades both the single most prominent sources of immigration to the United States and the European Union, respectively no longer play that role. Internal mobility toward the quickly developing urban agglomerations of these countries has become an attractive alternative to emigration. 12

3 By the same token, several emerging economies including Angola, Brazil, Chile, Ivory Coast, Malaysia, and South Africa are attracting migrants from neighboring countries, opening up regional alternatives for mobile people who might otherwise have looked overseas for job and career opportunities. At the same time many middle- and low-income countries such as Bangladesh, Egypt, India, Pakistan and the Philippines continue having youthful and growing populations coupled with high unemployment. For citizens of these countries emigration to neighboring countries and oversees destinations will continue to be a welfare enhancing alternative for quite some time. 13

4 The European Asylum System: Achievements and Failures with regard to the Post-Stockholm Process Petra Bendel, Friedrich-Alexander-University of Erlangen-Nuremberg My paper follows the latest policy changes of EU Asylum and Refugee policy. It analyses the outcomes as well as the modes of democratic governance in recent decision-making of the new Common European Asylum System, adopted by the European Parliament and the Council in mid-2013, which is now to be transposed and implemented into the national laws of the Member States. It further asks for the future of the Post-Stockholm process in the light of the latest developments after Lampedusa and with regard to the power relations in Brussels. In the Treaty of Lisbon the EU has expanded its competences for asylum and migration significantly, setting itself the goal to agree on a common immigration policy aimed at ensuring ( ) the efficient management of migration flows, fair treatment of third-country nationals ( ), and the prevention of, and enhanced measures to combat illegal immigration and trafficking in human beings. The new Common European Asylum System based on revised legislative measures has been negotiated for five years. Co-decision is now the normal legislative procedure and qualified majority voting will be the standard procedure for decision-making in migration policies. This confers a significantly more important role to the Parliament. Non-governmental organisations, among them (pro)immigrant groups, have since shown greater interest in lobbying migration issues in Brussels and Strasbourg. With regard to the adopted policies, the EP has traditionally been identified with a more liberal and rights-based approach to migration policies, whereas the Council used to represent the restrictive positions of the Member States. Since competences have changed, this is obviously not always the case, as may be proven with several Directives. At stake are theses which claim that, on the other hand, non-majoritarian organs have gained a stronger influence with a more liberal content on decisionmaking in EU migration policy. Against the background of Lampedusa, I shall argue that majorities do still matter in asylum and refugee policies, especially when sovereignty matters are concerned. For the Post-Stockholm Programme, however, no big strikes can be expected from the Council concerning asylum and refugee policy: The integration phase of the EU asylum system has been finished during the past fifteen years. It cannot be expected that the EU Member States will give up further competences in this policy field. In view of the continuing economic and financial crisis in several Member States, all indicators in the field of asylum and refugee policy point to a consolidation, transposition, and implementation of the targets achieved and not to big legislative innovations. Another argument against further bigger steps forward in the field of asylum and refugees is the negative public opinion in the Member States regarding immigration. The reforms especially of the Common European Asylum System negotiated in the past five years got off the ground. Its achievements will set the course for more intense refugee and human rights 14

5 protection for those Member States which up to now are at the low end of the asylum standard range. In order to successfully adopt common standards, the Stockholm Programme could concretise issues such as mutual acceptance of the established protection standards by the Member States, respect of the freedom of movement of recognised refugees within the European Union, and, if the political intention can be achieved, in common asylum procedures. In the operational area, especially in view of the principle of solidarity among the Member States, cooperation must concentrate on an expansion of the EASO and FRONTEX agencies. The expansion of the border control agency to joint border protection with European officers may be an opportunity, but the Council comments this option very and it will surely have to overcome massive sovereignty objections. Whereas asylum and refugee policy issues may cover only little space on the priority list of the European Council, border protection is very likely to be a on the top of the European Council s next programme. The European External Border Surveillance System (EUROSUR), the Entry-Exit-System (EES) and the Registered Traveller Programme (RTP) are the pillars of the new EU-plans for smart borders. They include border surveillance with elaborate technology including unmanned drones, the scanning of cross-border movements into and out of the Schengen Area by registering biometrical identification data of so-called overstayers and facilitating immigration of bona-fide-travellers into the EU. Commission and Parliament have already ordered several studies and sharply criticised these plans. Although, with its comprehensive approach in the Global Approach to Migration and Mobility concept, the Commission had struggled to achieve a broader immigration concept for the European Union which again focusses on development and, among others, the extension of mobility partnerships with third countries as well as legal access opportunities, the Member States reactions showed that they are unwilling to give up further competences in the area of legal migration. The response of the Parliament to the smart-borders -initiative made once again clear that the European Parliament continues to use the powers reached in the Lisbon Treaty. The Parliament which will be newly elected in 2014 may profit from the first experiences with an ordinary legislative procedure, professionalise its contribution, and position itself actively in the discussion around the Post-Stockholm process. With its LIBE-Committee responsible for the protection of fundamental rights, it takes care that all of the Commission`s proposals in the policy field are strictly observed. With its initiatives it provides a broader public perception and more transparency in the decisionmaking process in the policy field, and reflects in its debates the kind of political polarisation that asylum and refugee policy issues actually provoke in the Member States. Hence, the political process in Brussels and Strasbourg is no longer disconnected from the discourses in the Member States. It remains all the more important to continuously judge the European Union and its Member States according to their self-set goals and obligations in the field of refugee and human rights, and to remind them of the principles of responsibility and solidarity. Not for nothing has the Lisbon Treaty, as explained above, widened the access for jurisdiction, and increased the sphere of influence of non-governmental organisations. 15

6 The Human Dimension of Global Migration in the European Context Conny Rijken, Tilburg University The EU s mandate in the field of migration law has been extended time and time again over the last two decades. In a similar way and at some points interrelated European criminal law took shape. These two area s were extensively addressed in the Stockholm programme in which yet a third area was broad into the arena, namely, fundamental rights. Situations in Greece, Italy and Spain have shown that migration law, criminal law and fundamental rights meet at the point where the decision of inclusion and exclusion takes place. Where people risk their lives to improve their situation or that of the next generation. Where European agencies and Member States of the EU with external boarders, try to implement rules and regulations adopted in all three areas. Legal rulings from the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR) as well as critical reports from NGOs and EU agencies show that at this moment there is not an equal balance between the interests in migration law, criminal law and fundamental rights. Creating such a balance is the challenge for the near future and the proposed paper tries to outline three interrelated avenues for creating such a balance which will ultimately be aimed at a more humanised (European) migration policy. The first avenue maybe is the most controversial one and addresses the question to what extent non-acting EU Member States can be held accountable for human rights violations by EU agencies or other EU Member States vis a vis third country nationals while applying and implementing European migration law. So far the territoriality principle is most leading for identifying the state responsible for human rights violations. The extraterritorial application of human rights obligations and responsibilities of states for violating acts outside the state performed (also) on their behalf, is a relatively new area. Important cases such as Bankovic give some guidance as to how such responsibilities can be designed. The first avenue departs from a slightly different concept, namely, that the territoriality principle is changing as a consequence of the Europeanization of migration law. This concept of territoriality implies a European dimension if powers in the field of migration and asylum are transfered from the national to the European level. Questions that rise are: Is territoriality still limited to the national territory if other Member States and EU agencies such as FRONTEX act on behalf of all EU Member States? Or does a European territory emerge in which sharing responsibilities and solidarity between Member States imply a shared accountability as well? The consequence thereof would be an extraterritorial application of accountability or put differently a change of the territoriality principle to include a European territory. The accountability gap for agencies, partly remedied with the Lisbon Treaty, further complicates the possibilities of this first avenue. For instance, FRONTEX mainly operates through national professionals creating blurring boundaries as to who is accountable for the activities undertaken during FRONTEX operations. So far, FRONTEX shares the opinion that the liability lies with the Member State the officers originate from. However, this point of view has been contested by scholars, NGOs and other organisations. 16

7 The adoption of a paradigm shift in the territoriality principle would imply that Member States without external borders or not affected by serious migration flows could become liable if and when other Member States in their efforts to control migration and to secure the external borders are acting on behalf of all Member States when implementing Union law. Based on the principle of shared responsibilities and loyal cooperation the transfer of powers then no longer waives responsibilities. A second avenue relates to the former but puts the focus on the liability of the EU itself. The adoption of the EU Fundamental Rights Charter is an important step towards that direction. The future accession of the EU to the European Convention on Human Righs will further contribute to the effect that the EU, its institutions and agencies, can be directly held accountable for human rights violations. The extended powers of the CJEU post-lisbon on judicial review adopted in Article 263 TFEU now includes the competence to review acts of EU agencies, FRONTEX among them. Following the draft accession agreement on the accession of the EU to the ECHR, the ECtHR will be competent to review acts of agencies on compliance with the ECHR, which might give impetus to a more fundamental rights sensitive approach. The proposed paper will explore the consequences of the increased human rights attention in relation to reported violations by FRONTEX. Finally, the third avenue relates to the obligations the EU might have based on international human rights law, including refugee law. The Hirsi case (ECtHR application no /09), in which Italy was found to have breached the Convention because it had sent refugees (including those holding refugee status granted by UNHCR) intercepted at the high seas back to Libya, demonstrates the prevalence of concepts derived from international human rights law, such as the principle of non-refoulement, and clearly shows the protective approach by the EU through its Member States. Protective in the sense that EU is creatively employing measures to prevent people from heading towards or entering the EU. A further elaboration of the international human rights obligations is given in the M.S.S. ruling (ECtHR application no /09). The importance of this case is twofold in the reasoning of the proposed paper. First, it shows that the application and interpretation of EU law is directly affected by international human rights law, at least through the ECHR. Second, it imposes obligations and responsibilities on Member States when fundamental rights in other EU Member States are not sufficiently taken into account. The consequences of these ruling in terms of human rights obligations for the EU and its Member States need to be further identified. The three avenues presented above are interrelated and inspired by the idea that the human dimension should be guiding in the further development of the Area of Freedom, Security and Justice in general, and European migration law in particular just because (international) human rights law compels the EU to do so. The further Europeanization of the Area post Lisbon, challenges both academics and practitioners to reconsider general concepts such as territoriality and sovereignty and to adjust these more in line with the Europeanization process by taking into account the human rights dimension. The proposed paper contributes to this by focussing on the migration dimension of the Area and to explore avenues for a more humanised migration policy. 17

8 When Europeanization backfires: the normalization of European migration politics Saskia Bonjour, Maarten Vink, Leiden University This paper investigates the impact of European cooperation on the dynamics of domestic policymaking in the field of migration policy. While European migration policy has gradually communitarized since the Amsterdam Treaty, member state governments have not yet fully caught up with the new reality. This is also reflected in a state of the art that, in contrast with the developing EU studies literature at large, is still dominated by intergovernmentalist analyses which assume that member states have full control over the integration process. The paper zooms in on the Family Reunification Directive of 2003 and its domestic political impact in the Netherlands. In contrast to what might be expected on the basis of intergovernmentalist theory, Dutch politicians did not use Europeanization to avoid political or judicial constraints at the domestic level. There was no need to play that game because support for restrictive reforms was far from lacking in the Netherlands. Nevertheless, the new Family Reunification Directive was introduced with active support of the Netherlands, partly because Dutch politicians hoped to enhance the legitimacy of domestic policy reforms by spreading innovative ideas about what are acceptable conditions for family migration. In particular, the Dutch Europeanization strategy was aimed at convincing European counterparts that integration requirements may be legitimately linked to family migration. Contrary to Dutch politicians expectations, the Family Reunification Directive turned out to represent a major constraint on policy-making. What we observe is a process of lock-in, where EU legislation freezes the status quo and limits the scope of possible reforms significantly. This unintended consequence was the result, first, of the Court s jurisprudence, which turned a text which appeared to leave member states a great deal of leeway into a precise and constraining legal instrument. Second, the policy preferences of Dutch politicians have shifted way beyond the limits of what the Directive will allow. At the time they signed the Directive, Dutch policy-makers foresaw neither this development in jurisprudence, nor this development in their own preferences. Valorization This paper invites policymakers to reflect on the on-going process of Europeanization of migration policies. Are Dutch politicians and civil servants sufficiently aware of how much the political game of migration policy making has changed, due to Europeanization? How did the current EU legal framework come into being? Do the constrains and possibilities offered by EU law correspond to the political wishes and intentions of past and present Dutch governments? If not, how can we explain that Europeanization has unexpected and unintended consequences? Can we prevent future EU migration policymaking from having similar unintended consequences, and if so, how? 18

9 Migration controls as a local affair Jeroen Doomernik, Renée Daamen, University of Amsterdam J.M.J.Doomernik@uva.nl, renee.daamen@gmail.com The settlement of newcomers from abroad has implications for national labour markets and the distribution of a nation s scarce resources. Therefore migration regulation traditionally was subject to national policy making and scholars from most fields usually studied (and study) it as such. Growing European integration has as one consequence that sovereignty in the area migration has largely disappeared. Only a small part of current immigration to the Netherlands, for instance, is still subject to nationally imposed restrictions. Paradoxically the remaining immigration receives considerable political attention: asylum seekers are viewed with concern for their potential economic costs and family migrants for their potential social and economic burdens. Pushed by easily exploited popular sentiments governments seem prepared to go to great lengths to curtail such migration. Their success in doing so seems limited, notably when it comes to the enforcement of departures. In an attempt to gain more control central government co-opts the enforcement capabilities of other actors such as local governments, especially their ability to withhold services and resources, aiming at the attrition of unauthorized migrants. They in turn have to balance these political desire with typical local issues such as maintaining the peace, caring for the weak and young, and preventing vagrancy. In effect, issues that used to be the exclusive domain of national democratic deliberation have become matters for local democracy. At the same time, local reluctance to radically enforce national exclusionary policies, seem to undermine the effectiveness of national migration controls. Thus further fuels national political determination to clamp down on irregular migrants. In effect, so we suggest, we are witness to a process of negative feedback. In order to investigate ways towards a reversal of this self-feeding mechanism into the direction of more effective regulation we offer examples from a case study the authors performed on Montgomery County, Maryland, United States. In this county unauthorized migrants are treated in an inclusive manner and only under very specific circumstances do the authorities exhibit an interest in the migration status of the County s residents. 19

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Committee on Civil Liberties, Justice and Home Affairs. on the Situation of fundamental rights in the European Union ( ) (2011/2069(INI))

EUROPEAN PARLIAMT 2009-2014 Committee on Civil Liberties, Justice and Home Affairs 11.7.2012 2011/2069(INI) DRAFT REPORT on the Situation of fundamental rights in the European Union (2010-2011) (2011/2069(INI))