Implementing the Amsterdam Treaty: Cementing Fortress Europe
01 March 2004
The five year deadline for agreement on the common EU immigration and asylum policy expired on 1 May 2004. This article examines the key decisions, how they were taken and what they will mean for asylum-seekers
On 1 May 2004 the EU proudly welcomed ten more countries. This date also marked the end of the five year ‘transitional period’ for the implementation of the Amsterdam Treaty provisions on a common EU immigration and asylum policy. ‘Normal’ EU decision-making procedures for binding EC Regulations and Directives have been suspended during this time because of the ‘political sensitivity’ of immigration and asylum issues. The European Commission’s role as drafter of EU legislation was shared with the member states, and the role of European Parliament in ‘co-deciding’ policies was limited to ‘consultation’ on proposals. To complicate things further, the 1997 Amsterdam Treaty also incorporated the Schengen provisions on visa and border controls agreed under the Schengen Convention. This meant that these could now be developed by the EU along with the new immigration and asylum policies. The rationale behind the a common European policy was that without minimum standards set by the EU, there would be a ‘race to the bottom’ over of the treatment of asylum applicants, with member states adopting ever stricter policies so as not appear a ‘soft touch’. Commitments were made at the special EU justice and home affairs summit in Tampere, Finland, in October 1999, where governments and the Commission promised they would listen to refugee and human rights groups and safeguard the right to asylum. So what happened?
Asylum policy
The EU’s asylum policy is now dictated by a complex series of Directives and Regulations covering temporary protection (2001/55/EC), reception conditions (2003/9/EC), responsibility for asylum-seekers (‘Dublin II’, 2003/343/EC) and the definition and content of refugee status (agreed text in 7944/04). Critically, however, the EU failed to adopt the asylum procedures Directive before the 1 May deadline, though it has agreed the ‘general approach’ (8771/04). These new rules have serious implications for people seeking asylum in Europe.
Primarily, the EU asylum rules need to be seen in the wider context of more and more measures seeking to prevent authorised, undocumented, irregular and ‘illegal migration’ into the EU (see further below). These measures make no provisions for people trying to reach the EU in order to seek asylum so genuine refugees are forced into the world of false documents, ‘traffickers’ and organised crime. Rather than incorporate rules on entry for the purpose of seeking asylum into EU immigration and asylum law, the EU has plumped for criminalisation, with overbroad definitions in EU criminal law of ‘facilitating illegal entry and residence’ and ‘trafficking in human beings’, even going as far as adopting EU legislation on rewarding asylum applicants and other ‘victims’ with residence permits if they cooperate with the police (by informing).
A decision to create an EU ‘temporary protection’ (TP) regime does not even provide for lawful entry into the EU, so on the one hand the EU is saying that crises on the EU’s doorstep like Kosovo warrant special measures (i.e. a greatly restricted form of protection for a set period only) but on the other hand is taking measures to prevent the entry of the very people taking flight. The TP Directive also encourages the grant of temporary protection as an alternative to refugee status (for alternative forms of protection, read fewer rights). This is indicative of how EU asylum law as a whole has developed: refugees and asylum-seekers derive their rights from the refugee Convention (which only ever envisaged ‘temporary’ protection) and the European Convention on Human Rights (ECHR). Rather than enshrining these minimum standards into EU law, the Council has incorporated all the methods used by the member states to limit, restrict<