a. Before and after the Amsterdam Treaty Towards a common European Union immigration policy

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1 The new European Policy on immigration Román Gil Alburquerque SAGARDOY ABOGADOS Madrid May 2011 I. Background a. Before and after the Amsterdam Treaty Towards a common European Union immigration policy All Member States of the European Union (EU) are affected by the flow of international migration. They have agreed to develop a common immigration policy at EU level. The European Commission has made proposals for developing this policy, most of which have now become EU legislation. The main objective is to better manage migration flows by a coordinated approach which takes into account the economic and demographic situation of the EU. In spite of the restrictive immigration policies which have been in place since the 1970s in most Member States, large numbers of legal and illegal migrants have continued to come to the EU together with asylum-seekers. Taking advantage of persons seeking a better life, smuggling and trafficking networks have taken hold across the EU. This situation meant that considerable resources have had to be mobilised to fight illegal migration especially to target traffickers and smugglers. Furthermore, it is

2 recognised that the EU needs migrants in certain sectors and regions in order to deal with its economic and demographic needs. Realising that a new approach to managing migration was necessary, the Treaty of Amsterdam established as Community competence the field of the crossing of external borders, asylum, refugees and displaced persons and immigration policy, and the leaders of the EU set out at the October 1999 European Council in Tampere (Finland) the elements for a common EU immigration policy (the Schengen Agreement was born there). The approach agreed in Tampere in 1999 was confirmed in 2004 with the adoption of The Hague programme, which sets the objectives for strengthening freedom, security and justice in the EU for the period Tampere agenda The European Council agreed in Tampere (Finland) in October 1999 on the elements required for a EU immigration policy namely that: it be based on a comprehensive approach to the management of migratory flows so as to find a balance between humanitarian and economic admission; it include fair treatment for third-country nationals aiming as far as possible to give them comparable rights and obligations to those of nationals of the Member State in which they live;

3 a key element in management strategies must be the development of partnerships with countries of origin including policies of codevelopment; As the first step in creating a common EU immigration policy, the European Commission presented in November 2000 a communication to the Council and the European Parliament in order to launch a debate with the other EU institutions and with Member States and civil society. The communication recommended a common approach to migration management which should take into account the following: the economic and demographic development of the Union; the capacity of reception of each Member State along with their historical and cultural links with the countries of origin; the situation in the countries of origin and the impact of migration policy on them (brain drain); the need to develop specific integration policies (based on fair treatment of third-country nationals residing legally in the Union, the prevention of social exclusion, racism and xenophobia and the respect for diversity). This was followed in July 2001 by another communication which proposed the adoption of an open method of coordination for the Community immigration policy, to encourage the exchange of information between the Member States on the implementation of the common policy. The procedure comprises reaching agreement on a number of European

4 objectives or guidelines which Member States would then incorporate into national action plans which would be reviewed on a regular basis. The main achievements during the period of implementation of the Tampere programme ( ) have been the following: Legal immigration Family reunification The Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification entered into force on 3 October Member States legislation had to comply with this Directive not later than 3 October EU long-term resident status - The Council Directive 2003/109/EC of 25 November 2003 on a long-term resident status for third country nationals who have legally resided for five years in the territory of a Member State entered into force on 23 January Member States legislation had to comply with this Directive by 23 January 2006 at the latest. Students - A Directive on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service was adopted by the Council on 13 December 2004 (Directive 2004/114). It entered into force on 12 January Member States legislation must comply with the Directive by 12 January 2007.

5 Researchers A Directive for the facilitation of the admission of researchers into the EU was adopted by the Council on 12 October 2005 (Directive 2005/71). Its provisions will have to be implemented by Member States by 12 October Integration Integration and employment - In June 2003, the European Commission adopted a policy paper on immigration, integration and employment in which it called on the EU member states to step up their efforts to integrate immigrants (COM (2003) 336). A network of National Contacts Points on Integration has been set up and meets regularly to exchange and discuss best practices. The Network provided valuable input for the preparation of the Handbook on Integration, published in November 2004 In September 2005, the Commission adopted the communication 'A Common Agenda for Integration - Framework for the Integration of Third-Country Nationals in the European Union' (COM (2005) 389).This Communication provides new suggestions for action both at EU and national level. Member States are encouraged to strengthen their efforts with a perspective to developing comprehensive national integration strategies, while new ways of ensuring consistency between actions taken at EU and national level are proposed. In June 2006 the Commission presented the Second Annual Report on Migration and Integration (SEC (2006) 892) which provides an overview of migration trends in the European Union, analysing the

6 changes and describing actions taken regarding the admission and integration of immigrants at national and EU level in the calendar year In May 2007, the second edition of the 'Handbook on Integration for policy-makers and practitioners' was issued as a driver for the exchange of information and good practice. It focuses on mainstreaming immigrant integration, housing in a urban environment, economic integration and integration governance. In June 2007, Council conclusions on the strengthening of integration policies in the EU by promoting unity in diversity were adopted as a follow-up to the Informal Meeting of EU Ministers Responsible for Integration that took place in May 2007 in Potsdam. They mark a new step in steering the EU integration agenda In September 2007, the Commission presented the Third Annual Report on Migration and Integration (COM (2007) 512), continuing the monitoring process of policy developments on admission and integration of third-country nationals in the EU. The report provides information on the establishment of the EU framework for integration up to June 2007 and it includes specific information about the various dimensions of the integration process in Member States for the calendar year 2005 and the first half of 2006.

7 Illegal immigration Action plan on illegal immigration - On 28 February 2002, the EU Council of ministers adopted a comprehensive plan to combat illegal immigration and trafficking of human beings in the European Union Return - On 28 November 2002, the Council adopted a Return action programme which suggested developing a number of short, medium and long term measures, including common EU-wide minimum standards or guidelines, in the field of return of illegal residents. On 16 December 2008, the European Parliament and the Council of the European Union adopted Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals as published in the Official Journal (L 348 of ). The transposition deadline for the Member States is In July 2006 the Commission adopted a Communication on policy priorities in the fight against illegal immigration of third-country nationals (COM (2006) 402) which builds on the guiding principles and EU achievements and further develops new priorities. It follows a comprehensive approach, striking a balance between security and basic rights of individuals and thus addresses measures at all stages of the illegal immigration process.

8 Relations with third countries Readmission agreements have been concluded with a number of countries ( Hong Kong, Macao, Sri Lanka, Albania) and negotiations with several others are ongoing Assisting third countries On 10 March 2004 the European Parliament and the Council adopted a Regulation establishing a programme for financial and technical assistance to third countries in the area of migration and asylum (AENEAS). It contains a multiannual programme for 2004 to 2008, with an overall expenditure of 250 million euro. Finally, it is important to note that the common EU immigration policy does not apply to Denmark which has decided to opt out of Title IV of the Treaty establishing the European Community. The UK and Ireland decide on their involvement on a case-by-case basis (possibility of an 'opt-in'). II. Data Under The Hague Programme, on 14 September 2005, the Commission adopted a proposal for a Regulation of the European Parliament and the Council on Community statistics on migration and international protection (COM (2005) 375 final.). The proposal intended to improve the statistical knowledge of migration-related phenomena by specifying the data to be collected, the timetables to be applied, the definitions and the quality standards. The statistics to be covered by the Regulation were international migration, usually resident population, acquisition of citizenship, international protection (including asylum), residence permits, returns and prevention of illegal entry and stay (apprehensions and refusals at the border).

9 The European Migration Network (EMN) The European Migration Network was established through Council Decision 2008/381/EC. Its primary purpose is to provide up-to-date, objective, reliable and comparable information to support policymakers, as well as to provide this information to the wider public. The EMN produces inter alia Annual Policy and Statistics Reports. It also undertakes specific studies of relevance to supporting the needs of policymakers and has an Ad-Hoc Query mechanism whereby information on a specific topic may be obtained within a short timescale. The EMN has also produced a Glossary on Asylum and Migration consisting of some 300 terms, with translations, in order to serve as a tool for improving comparability between Member States. All EMN Reports (National plus Synthesis) and other outputs are made available on the EMN website. Some data: - 27 member States million citizens (of those, 31 million foreigners: members of other EU state, or of a third State) - Difficulty to know with detail the exact figures related to illegal (administratively speaking) immigrants; according to some

10 estimates, 13 million foreigners working legally in the EU, 8 million illegally - Paradox: flows of illegal immigration do not seem to currently decrease, coexisting with a very relevant number of immigrants returning to their countries of origin (due to the economic downturn) III. The European Pact on Immigration and Asylum (Fall 2008) Immigration, a durable phenomenon which forms an integral part of international relations, is one of the principal challenges in the years and decades to come. Immigration pressures will remain as long as there continue to be disparities in development between Europe and southern and eastern countries. Zero immigration is an illusion. Organised and regulated immigration can offer opportunities, as they are a factor in promoting human exchanges and growth, particularly for countries for which economic development and an ageing population reflect an increasing need for renewed legal immigration. When badly managed, immigration can have negative consequences for the host countries and for immigrants themselves. The majority of European countries have to cope with illegal immigration, which is an obstacle to the smooth integration of legal immigrants, and a cause of conflict. Governments cannot settle for such a situation.

11 Furthermore, European construction has resulted in the formation of a vast area of free movement of peoples, which is a remarkable advance in terms of freedom, and an essential factor for prosperity. This change requires combined and common management of migration flows. The decisions taken by a Member State will have repercussions for all other Member States. The European Union is convinced that a fair, balanced and effective policy must deal with all aspects of immigration at the same time: management of legal immigration, control of illegal immigration and encouragement of synergy between migration and development. This is the Global Approach to Migration. For the first time, all European policies on immigration and asylum are based on a formal documentwhich has been adopted by Heads of State and Government, and this is the idea behind the European Pact on Immigration and Asylum. Five agreements: organizing illegal immigration, fight against irregular immigration, reinforcing border controls, establishment of a Europe of asylum, cooperation with countries of origin and transit i. Legal immigration - Legal immigration policy must be selective and concerted. - Legal immigration must be a matter of joint cooperation, for the country of origin and the host country. Benefits must be mutual.

12 - It is the responsibility of each Member State to implement labour migration policies and decide on the number of persons it wishes to admit according to its individual labour requirements. - The attractiveness of the European Union for highly qualified workers must be reinforced. - Temporary and circular migration (i.e. return trips) must be made easier, while trying to avoid the brain drain phenomenon from immigrants countries of origin. - Family immigration must be more effectively organised. It must respect the European Convention for the Protection of Human Rights and Fundamental Freedoms, and be in accordance with the acceptance capabilities of Member States and the integration capabilities of families. - Member States must have ambitious integration policies, which are based on a balance between rights (access to employment, housing, social services) and the duties of immigrants (respect for the laws and identity of the host country). Learning the language of the host country and access to employment are considered crucial factors for integration. ii. Illegal immigration: return, and prohibition of broad/open regularizations

13 - The Pact reaffirms the determination of Member States to control illegal immigration, in the best interests of States and the immigrants themselves. - Cooperation between countries of origin and transit will be strengthened in order to combat international criminal networks in immigrant trafficking and the trading of human beings. - Foreign persons who are in countries illegally must leave territories, preferably of their own free will. Deportation decisions taken by a Member State will be recognised by all Member States. - Measures of assistance for voluntary repatriation will be recommended and must be extended across all Member States. - Readmission agreements with non-member countries will be concluded to facilitate repatriation procedures. - Member States must cooperate with each other more effectively and take joint measures to ensure the repatriation of illegal immigrants. They will steadfastly combat any form of exploitation of illegal immigrants. - Member States must limit themselves to regularisations on a case by case basis for humanitarian or economic reasons. iii. Reinforcing borders control

14 - Each member state is responsible for controlling external, land, sea and air borders of the European Union for the part of these borders which belong to them. This control will be also carried out in the interests of all Member States. - Members States will undertake to use all available and required resources to fulfil this responsibility effectively. - The issue of visas containing biometric identification (digitised photo, fingerprints) will be extended across all Member States from January A Visa Information System (VIS) electronically connecting all consulates and central government departments will be set up.this system will help to control illegal immigration more effectively by identifying visa holders and their countries of origin with certainty. Consulates of Member States must improve their level of cooperation and, where possible, pool together and share their resources for the issue of visas. - Whenever it proves necessary, coordination for the control of external borders of the European Union will be provided by the FRONTEX Agency. The agency s resources must be strengthened to deal with crisis situations. Member States will undertake to provide FRONTEX with the resources it requires. - Cooperation with countries of origin and transit will be intensified to enable them to improve the control of their own borders Member States which have to deal with massive and disproportionate influxes of migrants (in relation to their acceptance capabilities) must be able to rely on the effective solidarity of other Member States.

15 - The control of the external borders of the European Union requires modern technological tools which will be developed jointly. iv. To build a Europe of asylum - The Pact reaffirms that any persecuted foreign person is entitled to assistance and protection on the territory of the European Union, in accordance with the core values of the Union and international commitments of its Member States. - The Pact calls for the setting up of a common European asylum system in order to avoid the disparities which still exist in granting refugee status, and their consequences. - A European Support Office was set up in the first quarter of 2009 to facilitate practical cooperation between Member States and unify procedures and legal systems. - A single asylum procedure containing common guarantees will be introduced by Refugees and persons granted other forms of protection will also have uniform status within Europe. - Solidarity towards Member States who are faced with massive influxes of asylum seekers will be organised in particular through the setting up of European teams responsible for examining applications. Furthermore, more effective distribution of persons with refugee status will be organised between Member States, on a voluntary basis.

16 - In close cooperation with the United Nations High Commissioner for Refugees (HCR), resettlement policies will be re-launched, enabling persons placed under the protection of the HCR abroad to be settled within the European Union. - Personnel who are responsible for border controls will receive training in respect of the rights of persons who require protection v. Cooperation with countries of origin and transit (to create a comprehensive partnership with countries of origin and transit, encouraging synergy between migration and development) - The European Union reaffirms its commitment to the Global Approach to Migration, which deals at the same time with the organization of legal immigration, the control of illegal immigration and synergy between migration and development. It will take up the challenges faced by immigration by setting up a partnership between countries of destination, origin and transit. - Migration must become an important component part of the external relations of Member States and the European Union. - Member States must conclude agreements with countries of origin or transit which take into account all aspects of migration. They will be encouraged to offer nationals of these countries opportunities for legal immigration which are adapted to their labour market.

17 - Migrant workers can gain work experience and build up savings which are of help to the development of their country. Circular migration will be encouraged. - Cooperation with countries of origin will be developed to discourage and combat illegal immigration. - The Pact will promote actions for combined development, which will enable migrants to take part in the development of their country of origin. Specific financial instruments must facilitate the most secure and most cost-effective transfer of migrants savings. - Development policy will be more effectively coordinated with migration policy to benefit the development of countries and regions of migration origin. IV. The Return Regulation (2008/115/CE) Balancing a strict immigration policy with respect for human rights The Return Directive is part of the Commission's common immigration and asylum policy outlined in the Hague Programme. The EU executive sees the directive as a tool to organise the return of illegal migrants by establishing common standards guaranteeing that they are returned with dignity and full respect for their human rights. It is also seen as a key means of establishing the EU's credibility in the field of migration policy, which is still in its infancy. The proposal for the Return Directive was first put forward in September After almost three years of negotiations, member states and institutions have finally reached an agreement on the

18 text, which was adopted by the European Parliament on 18 June 2008 (369 votes in favour, 197 against and 106 abstentions). Overall, the Parliament managed to pass over 70 amendments via the co-decision procedure. Yet the final compromise was deemed "flawed" by many MEPs from the Socialist Group (PES), the Greens and the left (GUE/NGL), all of whom refused to support it, saying it breached EU human rights standards. a. Enforced return in case of administrative irregularity A standard procedure across the EU to regulate expulsion The Return Directive seeks to standardise the procedures regulating the expulsion of illegal immigrants and close loopholes in national legislation. The text covers periods of custody and reentry bans and also includes a number of legal safeguards. Under a key principle of the directive, EU member states cannot adopt harsher rules than the ones laid out in the directive. However, they will be able to retain more liberal rules or adopt new ones of a more permissive nature. The directive establishes a common discipline for all member states to either expel every illegally resident migrant or grant him/her a definite legal status. Once a decision is taken to deport an individual who cannot claim asylum or refugee status, a voluntary departure period (7-30 days) follows. If the deportee does not leave, national authorities will issue a removal order, which can include an entry ban of up to five years. b. Possibility of temporal detention

19 If the judicial authority issuing the removal order has serious grounds to believe that the deportee might be hiding, the person can be put into custody. In nine EU member states, deportees can be detained indefinitely; in others, there are less stringent rules. The Return Directive (art. 15) sets the maximum period of custody at six months, with a possible twelve-month extension (6+12: maximum detention adds up to 18 months). An amendment introduced by the PES Group to reduce this to 3+3 was rejected. The directive describes "temporary custody" as a measure to be taken as a last resort: wherever possible, non-coercive measures should be favoured. The decision to place a person in custody must be approved by courts "as speedily as possible" after such administrative decisions are taken (the original Commission draft suggested a 72-hour deadline, a measure which was subsequently dropped from negotiations despite attempts by the Parliament's LIBE Committee on Civil Liberties, Justice and Home Affairs and the PES to reintroduce it). Regular judicial oversight of the detention decision should in any case be provided. Article 15 has arguably been the most controversial issue in the negotiations, with widespread opposition from human rights groups and the political left sparking debates beyond Europe. The provision was perceived as a repressive form of administrative imprisonment and attracted strong criticism, particularly from Latin American countries where it was described as the 'Directive of Shame' (EurActiv 27/06/08). Families, children and asylum seekers The Return Directive clarifies that families and children can only be held in custody as a last resort and for the shortest appropriate period of time. Unaccompanied minors will only be repatriated if

20 they can be returned to their families or to "adequate reception facilities". During negotiations, EU countries pushed for their national authorities to be granted greater flexibility in defining "emergency situations": if exceptionally large numbers of illegal immigrants constitute a burden on the country's judicial system, it can allow more time for judicial review. Legal aid will also be provided to immigrants who have no resources. The return fund set up by the Commission, 676 million for the period , can also be used to cover the cost of judicial help for illegal migrants. c. Removal to third countries Member states must also consider the political situation in the country of origin. In accordance with the principle of nonrefoulement, procedural safeguards for asylum seekers are left unaffected. A list of countries considered "unsafe" is drafted together by the EU Council of Ministers and the European Parliament. V. The Stockholm Program (political program regarding immigration in the EU) The Stockholm Program carves out the immigration and asylum portfolio differently from its predecessors in several ways. First, external border management and visa policy are dealt with separately, though the sections on illegal migration and asylum overlap

21 with the priorities for border management and visa policy. In the Hague Program, these issues were folded into immigration and asylum as "management of migration flows." Second, the Global Approach to Migration meaning cooperation with third countries on immigration has top billing. Previously it was third or fourth on the list. Third, the program includes some new, specific priorities, such as unaccompanied children (those under age 18 who are separated from their guardians and are seeking asylum or are apprehended trying to enter a country illegally). These highlight the fact that the "easy" parts of the immigration portfolio have been achieved, leaving the trickier elements. While the Hague Program emphasized harmonizing migration and asylum policies across Member States, the Stockholm Program makes "practical solutions" a priority. In reality, this means initiatives that promote cooperation between the Member States. Also, the program seeks to use soft law in the form of guidelines and stand-alone EU agencies, rather than the hard law envisioned in the Maastricht Treaty. Alongside the shift to practical cooperation, the European Union has made more inter-governmental, rather than Community, agreements with Member States. For example, the Immigration Pact, which sets out a political vision for future cooperation on European migration, is an agreement between Member States that both national governments and the European Union implement. In the last few years, Member State governments have instigated many of the new ideas in migration, with secondary support from the Commission. Examples include the Eastern Partnership, a new policy approach for mobility and security among six of the Eastern European neighborhood countries, and the goals set out at the regular G6 meetings of the largest Member States.

22 Immigration Harmonizing immigration policy has always been difficult to discuss at the European level, and the Stockholm Program reflects a shift in focus away from harmonization and toward finding alternative means of cooperation, such as the Global Approach to Migration. The following is a short analysis of the key points in each subchapter. Global Approach to Migration This policy area has seen the most growth over the past four years. The program builds on existing concepts, notably mobility partnerships with immigrant-origin countries in Africa and Eastern Europe (see EU Mobility Partnerships: Expression of a New Compromise), and follows three established priorities: promoting mobility, establishing links between migration and development, and working to prevent illegal migration. The program explicitly highlights the need to identify common interests with third countries, arguably one of the major challenges for the European Union. The main innovation in this section is the development of migration profiles for third countries. These profiles would gather together relevant data and, in theory, support both EU Member States and profiled countries in their efforts to develop cooperative immigration policies. This simple idea took hold at the 2009 Global Forum on Migration and Development, which brought together over 100 developed and developing countries to talk about ways in which migration may contribute to development. Partner countries outside the European Union welcomed the idea of improving their knowledge base as long as the ownership of the data remains with the profiled country itself. The Global Approach also seeks to cooperate with third countries on combating illegal migration, whether by financially supporting the

23 development of border management policies, or through completing readmission and visa facilitation agreements. The commitment to continue with readmission agreements (in which non- EU countries accept those who have entered the European Union illegally) is critical for Member States, and visa facilitation is one of the central, though relatively weak, "carrots" for encouraging such cooperation. Despite the fact that border management is a key element of the Global Approach, and one of the most concrete, the Stockholm Program attempts to downplay this aspect by transferring most of the detail to the section on illegal migration. Migration and Development The EU migration and development debate has progressed greatly since the formulation of the Hague Program, particularly at the international level through the Global Forum. The European Union has chosen three clear priorities: facilitating remittances, working with diaspora groups, and promoting circular migration. In the EU context, circular migration is defined as "a form of migration that is managed in a way allowing some degree of legal mobility back and forth between two countries." While central to current debates, it remains unclear what the European Commission may be able to actually do with respect to the first two, aside from provide and exchange information. Circular migration seems to have been downgraded in importance since the European Commission first articulated its interest in the subject in While mobility partnerships, a type of circular migration, have become the central tool of the Global Approach to Migration, circular migration is now merely the subject of further study and exploration. This reflects the difficulties the European Commission has encountered in translating circular migration into an EU-wide concept beyond small-scale, mostly bilateral, pilot projects.

24 The new element here is that the Commission has been explicitly mandated to investigate the potential impact of climate change on migration flows. Member States are both concerned about the issue, yet lack detailed knowledge. Labor Migration In comparing the Hague and Stockholm programs, the curtailed ambition regarding an EU-wide labor migration policy is striking. This is all the more true given that the Lisbon Treaty has ended the rule requiring that all Member States agree on a law before moving forward, which hampered much EU legislation in the past, including legislation on labor migration. In other words, it should be "easier" to pass new laws through the Justice and Home Affairs Council. Indeed, the Stockholm Program makes no reference to further developing a common labor migration strategy, despite the Swedish Presidency's efforts to convince Member States that a more open and coordinated immigration policy is in Europe's interests. Although the economic crisis lowered expectations for an ambitious labor market policy, the policy plan for legal economic migration mandated by the Hague Program and proposed at the end of 2005 highlighted the difficulties of finding a common approach in the midst of diverse labor markets, labor needs, and immigration systems. The only element Member States have greenlighted to date is the Blue Card system for highly qualified non-eu nationals. The Council adopted the legislation in May 2009, and it will come into force in mid Member States have not yet agreed on a single EU work and residence permit or common rights for third-country migrant workers (see next section). The remaining legislation, which would cover intracompany transferees, paid trainees, and seasonal workers, has yet to be tabled.

25 Instead, the title of the subchapter indicates a new focus: "a concerted policy in keeping with national labor-market requirements." Beyond completing the policy plan detailed above, all action points relate to the need for improved information and data on skills needs, skills recognition and development, and skills matching with third countries. While undeniably important, arguably these are core policies of Employment and Social Affairs, which has the mandate to develop Europe's thinking on the future of European labor markets. Rights for Third-Country Nationals Possibly the most significant element of the immigration program is the commitment to grant third-country nationals "rights and obligations comparable to those of EU citizens" by This proposal harks back to the original vision of the Tampere Program, a vision that EU policy to date has lacked. In addition, the Stockholm Program asks the Commission to begin evaluating, amending, and generally rationalizing existing legislation in the area of immigration. This language confirms even more the shift away from further harmonizing legislation, but it also offers the institutions an important opportunity to ensure that legislation works as well in practice as in theory. More controversially, the Commission needs to evaluate family reunion legislation to take into account the importance of integration measures. In essence, this paves the way for Member States to introduce conditions for spouses and other immediate family members to ensure language learning and "capacity" to integrate. Integration Integration policy received a boost from the Lisbon Treaty, which gives EU policymakers a solid legal basis for developing measures to "support" Member States in their national strategies on immigrant integration. The

26 Stockholm Program includes a number of ideas, such as developing common European modules (essentially how-to guides for key elements of integration policy), and EU-wide indicators to monitor the results of integration policies. These follow on from priorities that Member States agreed to at ministerial meetings in Potsdam (2007) and Vichy (2008) on integration. The program also builds on the work set out and completed under the Hague Program: mechanisms for exchanging information and experience, such as the Integration Portal, a website for stakeholders to contribute projects and information, and the European Integration Forum, a biannual meeting of civil society representatives to discuss integration priorities. Illegal Migration Return remains the central policy response for "illegally residing thirdcountry nationals." The program emphasizes the need for a sustainable return policy, supplemented by encouragement of voluntary return, and renewed efforts to sign readmission agreements with more countries of origin and transit. Member States could not agree on an action point that would address how to deal with unauthorized migrants who cannot be returned for whatever reason. Earlier drafts of the program had proposed that the Commission draft common standards, presumably including rules on legalization, to ensure that such migrants are treated similarly across the European Union. However, this remains a deeply sensitive political issue for Member States (mass legalizations are to be "avoided" according to the 2008 immigration pact) despite the fact that several amnesties in Belgium and Italy were held during Unaccompanied Minors

27 As noted above, unaccompanied minors were not addressed in the Tampere or Hague programs. Their inclusion in the Stockholm Program highlights their vulnerability and the need for a tailored response. The Commission will develop an action plan to highlight possible measures to address the issue. The plan will include practical measures to facilitate return where appropriate. Asylum Establishing a common approach to humanitarian protection has been a priority stemming from Tampere. However, with the basic elements of a harmonized policy in place, the final pieces needed to complete the system are increasingly difficult to table within the European Union. Common Area for Asylum The Hague Program aimed to complete the Common European Asylum System by The goal was to create a common system and procedures for recognizing refugees. Already in 2008, Member States had backed away from this objective and pushed the deadline to 2012, given the political difficulties in reconciling the great disparities across the European Union between the number of asylum applications and recognition rates of those who apply. While the Stockholm Program reiterates the goal of a "common area of protection and solidarity," the program's contents are far less specific than its predecessors. The program notes the differences that remain between Member States' protection systems, and it invites the Council and Parliament to intensify efforts to establish common asylum procedures and a uniform status by Beyond this, the program asks the Commission to "consider" further action, such as new legislative instruments or joint processing of asylum applications.

28 Rather than push for a common asylum area, the Stockholm Program highlights new tools. These include the forthcoming European Asylum Support Office (EASO), which will facilitate information exchange between Member States and support their decision-making on asylum, and the development of the European Asylum Curriculum, which would ensure that all officials involved in asylum determination have the same core training. The sensitive issue of Member States recognizing one another's asylum decisions, detailed in earlier drafts, is not mentioned. Sharing of Responsibilities and Solidarity between Member States This has been a contentious area for Member States with external borders. In particular, Italy, Greece, Malta, and Cyprus which receive disproportionate numbers of unauthorized migrants and asylum seekers on their shores have said other Member States need to share responsibility for such flows. In discussions for the Stockholm Program, a key matter was whether relocation of asylum seekers and additional support for certain Member States should be compulsory or voluntary. The program states that ultimately it is up to individual Member States to contribute, and it emphasizes that all Member States need to build capacity within their national systems. External Dimension In the EU context, the external dimension of asylum means promoting refugee protection beyond the European Union and making migration management part of foreign policy. External dimension was already a key element of the Hague Program, not least through the piloting of Regional Protection Programs in Eastern Europe and the Great Lakes region of eastern Africa. Despite little

29 evaluation, or evidence of success, the Stockholm Program suggests developing these protection programs further. In addition, the voluntary resettlement scheme, which Commissioner Jacques Barrot proposed in October 2009, is included. The scheme is intended ensure that especially vulnerable cases who do not have independent means of traveling to Europe still have access to protection in Europe. Member States lag behind North American countries in offering resettlement to recognized refugees, and it is hoped that this scheme will redress the balance. It is also meant to enhance the impact of the abovementioned Regional Protection Programs. Looking Forward The Stockholm Program, though rich in rhetoric, is frequently ambivalent. Although immigration and asylum policy is a key priority, the vision set out in Tampere and to a lesser extent, Hague, has disappeared. Few deadlines are included, and much of the work is tentative and subject to later decision-making.