28 March 2012
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Statewatch analysis no 14
Immigration and asylum
in the EU after 11 September 2001
Introduction
What effect did the events of 11 September 2001 have on EU immigration and asylum law? The answer can be found by examining in turn the fate of EU legislative proposals in this area and the parallel development of EU borders and expulsion policy over the last year.
EU legislative proposals
The new focus on security following the events of 11 September first of all derailed discussions on proposed EC immigration and asylum law for some months. The Belgian Presidency of the Council soon stopped holding discussions on proposals for directives on family reunion and asylum procedures, held only one meeting on the issue of responsibility for asylum seekers (a proposal to replace the Dublin Convention), and never even began discussions on outstanding proposals concerning the definition of 'refugee' and admission of non-EU citizens to take up employment or start businesses. Instead, the Belgian Presidency convinced the Laeken European Council to avoid the issue for months, instead asking the Commission to prepare revised texts of several measures the following April. It fell to the following Spanish Presidency of the Council in the first half of 2002 to make a greater effort to agree legislation.
As for the substance of legislation, September 11 prompted a reconsideration of some important provisions of these proposals. A paper from the Commission in December 2001, addressing the relationship between asylum and security issues, suggested that there should be greater ability to extradite asylum seekers, thus terminating the asylum claim or suspending it. It also argued that the case law of the European Court of Human Rights protecting alleged terrorists from expulsion to face a real risk of torture or other inhuman or degrading treatment would be reconsidered--indicating a flagrant disregard for established European human rights law.
The Commission's paper also examined issues besides asylum law, arguing that the proposed level of protection for long-term resident non-EU citizens in the EU against expulsion should be weakened even below the level in the Commission's outstanding proposal on this subject--although the proposed standards already fell below those applying to migrant EU citizens. Discussions on this proposal have since more than taken on board the Commission's proposed weakening of its own text. In fact, even the discussions on a proposed Directive on the rights of EU citizens and their family members have been affected by the 'September 11 effect', with Member States resisting the Commission proposal to protect EU citizens and their family members from expulsion on any grounds once they have lived in another Member State for more than four years.
In June 2002, the Commission released a revised version of its proposed directive on asylum procedures. Along with a general substantial lowering of the already limited procedural rights for asylum-seekers in the original proposal, the Commission made specific suggestions for changes making it easy to extradite asylum-seekers during the asylum determination process. The problem with this is that such trials could take place before a determination was made on each asylum-seeker's application for asylum. If the asylum-seeker is acquitted of terrorist accusations--as a large number of those accused of such offences since September 11 have been--how can the asylum-seeker's return to resume consideration of the application for asylum be assured?
EU expulsion and borders policy
Another striking development of EU policy since September 11 has been the focus on securing the borders of the EU and ensuring the removal of migrants who have crossed it. This increased focus on security is doubtless an indirect result of September 11, with many of the relevant policy papers referring expressly to the 'fight against terrorism'. A new border control plan was agreed in a matter of weeks in spring 2002. It will be spearheaded by a new unaccountable body: the chiefs of EU border police, meeting regularly in Brussels, who will be coordinating sixteen different ad hoc groups working on different aspects of border control. This will include operations at land borders, sea borders and international airports and mass joint expulsion exercises, each likely to involve foreign border police exercising controls at the borders of other Member States. But no EU-wide framework for the legality or accountability of these new powers has been agreed or proposed.
A Commission paper on illegal immigration appeared in November 2001 and a Green Paper on return policy appeared in April 2002. The Council acted on these plans within several months--before any effective public or parliamentary consultation could be completed. The Seville summit meeting in June 2002 topped these new policies off with a threat to developing countries to take action against them if they did not assist the EU with the implementation of these policies.
Moves to develop a revised version of the 'Schengen Information System' are continuing, with discussion of possible data included on 'troublemakers' to be prevented even from leaving their own countries. Meanwhile a new 'Visa identification system' database is to be established, holding masses of data on the non-EU citizens who make 12 million visa applications a year to EU states, possibly including photographs and fingerprints of all applicants and information on sponsoring family members, friends and business associates inside the European Union.
Conclusion: Unbalancing EU policy
Most of the more positive aspects of EU immigration and asylum
law (family reunion, rights of long-term residents, migration
for employment, definition of 'refugee', asylum procedures) still
have not been agreed, although proposals on all these issues
have now been outstanding for at least a year. The large majority
of these proposals have been watered down dramatically by the
Commission, Council or both over the last year. In place of genuine
efforts to agree fair rules on these issues, the EU institutions
have instead placed more time and effort on agreeing the negative
aspects of immigration policy: enhanced border controls, greater
use of expulsions, threats to third countries. The prospect of
a balanced policy outlined at the Tampere summit in 1999 appears
to be long gone, with the events of 11 September both directly
and indirectly encouraging a decisive shift toward an unbalanced
policy relying on coercion, expulsion, and control of entry.
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