EU: "Combatting illegal immigration" (feature)
01 July 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 the Recommendation was adopted as it was not listed in the Council press release). This was because the House of Lords inquiry was still underway and they had not been informed that the measure was to go through. The UK scrutiny reserve was lifted by the House of Lords just after the Council meeting and their inquiry was ended.
Measures finally agreed
The Recommendation finally adopted says that member states are:
"faced with an increase in illegal immigration, have already adopted specific measures to ensure better control of population flows and to avoid the continued unlawful presence in their territories of foreign nationals who have entered or are residing illegally.. 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 r