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EU: "Combatting illegal immigration"

28 March 2012

EU: "Combatting illegal immigration"

Statewatch bulletin, vol 5 no 4, July-August 1995

The June meeting of the Council of Justice and Home Affairs Ministers adopted, without a vote, a controversial Recommendation on "combatting illegal immigration" (see "Policing immigration: UK & Europe", Statewatch vol 5 no 2). There were a number of significant changes between the first draft of December 1994 and the final version agreed.

The proposal was changed from a "Joint Action" (under Article K.3.2.b of the Maastricht Treaty) to a "Recommendation" between April and June. Prior to this the only "Joint Action" adopted by the Council was one on travel facilities for school pupils from third countries resident in a member state (December 1994; in March 1995 another "Joint Action" was agreed to the Europol Drugs Unit).

There has been some confusion as to the distinction between these two forms of decision-making under Title VI of the Maastricht Treaty. A "Joint Action" may either be a policy position to be followed by EU member states or may be legally binding in international law depending on the intention of the Council as expressed in the actual text. "Recommendations" are political acts rather than legally binding instruments intended to be pursued in each member state by changes to practice and to domestic legislation if necessary. As a French Presidency Note attached to the first draft stated the measures depend on "the Twelve implementing measures which, if not identical, are at least consistent".

Following the first draft in December 1994 the Home Secretary, Michael Howard, made known in February the elements it was intended to introduce in the UK - including fines for companies employing "illegal" immigrants. He also stated in a memorandum that the government wanted to change the proposal from a "Joint Action" to a "Recommendation". With the publication of the second draft in April the House of Lords Select Committee on the European Communities (Law and Institutions) decided to conduct an inquiry and evidence was invited on 28 April. By the time of the Council of Ministers meeting on 20 June the French Presidency's proposal had undergone further amendment and by 16 June had been changed to a "Recommendation" thus removing objections by the UK (and Irish) governments. The Council agreed the measure without debate but subject to a scrutiny reserve by the UK (this led to some confusion was to whether or not theRecommendation was adopted as it was not listed in the Councilpress release). This was because the House of Lords inquiry wasstill underway and they had not been informed that the measurewas to go through. The UK scrutiny reserve was lifted by theHouse of Lords just after the Council meeting and their inquirywas ended.

Measures finally agreed

The Recommendation finally adopted says that member states are:

"faced with an increase in illegal immigration, have alreadyadopted specific measures to ensure better control of populationflows and to avoid the continued unlawful presence in theirterritories of foreign nationals who have entered or are residingillegally.. recommend.. the following guidelines."

The main provisions are:

1. Where "a person appears to be residing in the country unlawfully, his [sic] residence situation should be verified" in particular there should be "identity checks" a) where a person is being investigated for a criminal offence; b) "to ward off threats to public order or security"; c) "to combat illegal entry or residence" for example at border controls points - ports, airports and railway stations. (para.2)

2. Third-country nationals should have to present to "competent authorities.. their authority to reside within the territory of the member state where they are". (para.3)

3. To quality for benefits - health, retirement, family or work - the status of foreign nationals should be verified. "Such verifications are carried out by the services providing the benefits, with assistance, if necessary, of the authorities responsible for issuing residence or work permits". The "central or local authorities responsible for dispensing benefits to foreign nationals" should be informed "of the importance of combating illegal immigration in order to encourage them to report to the competent authorities.. such cases of breaches of the residence rules as they may detect in the course of their work." (para.4)

4. "Employers wishing to recruit foreign nationals should be encouraged to verify that their residence or employment situations are in order by requiring them to present the document(s).." Further member states "could stipulate" that employers may check with the responsible authorities before offering employment (the UK and Ireland reserved their position in regard to the application of this point). (para.5)

5. Employers have foreign nationals on their workforce who are not authorised "should be subject to appropriate penalties". (para.6)

6. The competent authorities should be empowered to ensure that those refused authority to reside in a country "have left that territory of their own accord". (para.7)

7. "Each member state should consider setting up a central file of foreign nationals containing information [on their status] including any refusal of authorisation to reside and any expulsion measures." (para.8)

8. "Member states should take every measure to reinforce and improve means of identifying foreign nationals who are not in a lawful position.. ". Where a foreign national has been, "or is likely to be detained" the necessary travel documents necessary "for expelling foreign nationals who have no documents" should be obtained.

"Foreign nationals who have deliberately brought about their illegal position, particularly by refusing to supply

travel documents, should be subject to penalties. In appropriate cases, such penalties may fall under criminal law". (para.10)

9. The Recommendation says members states "will review the follow up to Chapter III.2" of a Recommendation on expulsion adopted until the UK Presidency in November 1992. On examination this refers to "the introduction of laws to allow fingerprinting of those to be expelled, to assist identification". (para.10)

10. The Council of Justice and Home Affairs Ministers is to review, at least once a year, "the progress made on harmonisation in the fields covered by this Recommendation." (para.10)

What was changed

A number of changes were made to the first version (December1994) of what was then a "Joint Action". Where the final versionjust refers to "public order" the original suggested "preventiveidentity checks to ward of threats to public order" for examplesat "demonstrations, sporting events, open air concerts" and "inspecific places (sensitive neighbourhood, the Underground)". More tellingly the first draft said that "identity checks"should be:

"carried out in a non-discriminatory manner. Assessment of whoconstitutes a foreign national shall be based solely on objectivecriteria which comply with non-racist and non-xenophobicprinciples."

This was deleted from the second and the final draft.

UK proposals

On October 1993 the Home Secretary, Michael Howard, launched astudy to track down "illegal" immigrants following a decision inJune of that year by a meeting of Immigration Ministers inCopenhagen to start national measures for their expulsionthroughout the EU (see Statewatch vol 3 no 5). On 18 July this year Mr Howard announced a "clampdown on abuseof social security benefits, students awards, health and socialhousing by illegal immigrants and temporary visitors" who are"milking the system". The main proposals are:

1. stopping benefits including social security, housing, free NHS treatment and student awards "to people who are here unlawfully or as temporary visitors";

2. the training of staff "who provide benefits to identify claimants who are ineligible because of their immigration status";

3. to make quick and effective arrangements for staff of "benefit providers to pass information on immigration offenders to immigration authorities";

The four government departments involved will be working on anmulti-agency basis with the police and immigration service.Measures they will be taking include: 1) Department of SocialSecurity is to further review benefits; "ineligible people from abroad are [already] excluded from income support, housingbenefit and council tax benefit". 2) the Department of Educationand Employment is to consider "tightening access to studentawards" and is considering "whether it would be feasible to issueguidance for school admission authorities". 3) the Department ofthe Environment is to introduce legislation "to take away frompeople from abroad the right to social housing". The governmenthas already put forward "proposals for fairer [sic] access tosocial housing, under which persons from abroad temporarily inthis country will not be able to obtain assistance under thehomelessness legislation". To this is now added a new proposalto stop "such people" getting social housing tenancies from localauthorities. 4) the Department of Health is to find better waysto stop "such people" from getting access to free medicaltreatment.

In line further with the EU Recommendation Mr Howard said that "officials in central government will pass to the immigration authorities information about suspected illegal entrants and overstayers with whom they come into contact in the course of their normal duties" and "the Immigration and Nationality Department will be able to give details of an applicant's status under the immigration laws when this is relevant to his eligibility for state benefit or service".

Jack Straw, the Labour opposition Shadow Home Secretary commented on the proposals that he would: "judge Mr Howard's package on its merits, including whether the proposals were effective and fair". He thought that: "criminal agents usually working overseas take large sums of money in return for promises of safe passage to the UK" were at the root of much of the illegal immigration, fraud and abuse. An editorial in the Guardian criticised of Mr Howard's proposals noting the comment of immigration officers that they would be a "licence for racism and a recipe for disaster" and concluded that "Labour's response yesterday was pathetic".

The effect of these proposals will be to introduce passport checks by social security staff, local authority education and housing officers, teachers, doctors, dentists and NHS hospital staff. Mr Howard's assurance that: "Lawful residents in Britain will not be affected and have nothing to fear, no matter what their ethnic background" will cut little ice with black and migrant groups.

These proposals go hand in hand with new measures to identify "illegal" migrants. The Home Office said in July that a computerised database now "holds details of suspect persons who should be identified before being granted entry" and links were installed in 23 main locations with portable units in use on board Eurostar trains. 173 new beds "to enhance detention accommodation" are under construction.

Sources: Proposal for a joint action on harmonising means of combatting illegal immigration and illegal employment and improving relevant means of control, Note from Future French Presidency to the Migration Working Party (Expulsion), ASIM 242, Restricted, ref: 12336/94, dated: 22.12.94; version dated: 11.4.95, ASIM 30 Rev 2, Limited; final version: Recommendation on harmonising means of combatting illegal immigration and illegal employment and improving the relevant means of control, ASIM 188, dated:16.6.94, Limited; French Presidency Note, 24.12.94; Explanatorymemorandum from the Home Office, 28.2.95; Recommendationregarding practices followed by member states on expulsion,30.11.92; Liberty memorandum of evidence to the House of LordsSelect Committee on the European Communities on a proposal forJoint Action by member states relating to illegal immigration andemployment, June and July 1995; Guardian, 19.7.95; Home Officepress release, 18.7.95; Commons written answer, 18.7.95; HomeOffice press release, 19.7.95; see also Statewatch, vol 3 no 5and vol 5 no 2.

Statewatch bulletin, vol 5 no 4, July-August 1995