Mr. Wouter VAN DE RIJT

General Secretariat of the Council of the EU; DG H - Justice and Home Affairs

TOWARDS A COMMON EUROPEAN MIGRATION AND REFUGEE POLICY:
WHAT ARE THE OPPORTUNITIES AND WHAT ARE THE LIMITS OF THE AMSTERDAM TREATY?

PARIS, 17 November 2001

Lecture in the Great Debate seminar 'European Migration and Refugee Policy: NewDevelopments'

Introduction

The issues relating to migration are some of the most sensitive in todays European policy. If you just look into last week's news, you will probably have heard the British and the French P.M.'s, discussing illegals arriving in the UK, the Conference in Stockholm about asylum, and the strong position taken there by Kofi Annan and Ruud Lubbers. The JHA-Ministers having met informally about the tasks ahead of them and you might even have heard that a Decision is now under preparation by which the 5 Nordic Countries (Denmark, Sweden, Finland plus Norway and Iceland) will join the Schengen area as from 25 March 2001. This quick overview to show you that there is a lot of work still to be done in order to achieve an area of Freedom, Security and Justice. In the following hour, I will present some of the key issues at stake. I do so without binding the institution, the General Secretariat of the Council of the EU, for which I work.

An Area of Freedom, Security and Justice

The goal for an area of Freedom, Security and Justice has been set by the Treaty of Amsterdam and detailed during 1999's Tampere Summit. The progress in this field can be tracked by a very useful instrument kept up to date by the European Commission, the so called "scoreboard". When looking into that, you do not only see the different goals to achieve but also the keyplayers who are involved, the progress which was made and the tasks left. One must recognise that policy in the field of JHA is seriously complicated by a very complicated structure of intermingled bodies and instruments. You should just pay a look at the parties involved: there is UNHCR, the Council of Europe, the Council, the Commission, the European Parliament, Europol, Interpol. Within these bodies, you will find furthermore different dimensions of cooperation: so you have the famous pillar structure, with a first pillar of communautarised fields of policy, the third pillar with the so-called intergovernmental way of doing. On top of it, or just in between if you wish, there is the Schengen cooperation which do not only include EU-Member States but also Norway and Iceland. Originally, the United Kingdom and Ireland decided to stay outside Schengen, but they have now recently asked to opt in partially, which means, or will mean, that the UK and Ireland will participate partially in the Schengen acquis. In fact, they intend to apply only those parts of the Schengen acquis which relate to police cooperation, judicial cooperation and parts of the SIS and data protection.

The Candidate Countries

Chairman, when you invited me to speak to you today about opportunities and limits of the Treaty of Amsterdam, I realised that your organisation is always strongly dedicated to serving as an information provider for representatives for candidate countries. So I cannot introduce this conference without paying attention to the fact that all the issues we are talking about, will become once issues to be dealt with by 27 States or so. I will not enter into too much detail today since this is not the purpose of my speech. The negotiations are going on. I just want to say that the Central and Eastern European Countries have to take over at least 4 huge clusters of work: the EU-acquis, the Schengen acquis, new acquis of the EU, and the rule of law. In fact, there is a similarity between the construction of the European Area, in which we are involved right now, and the construction of the individual States in recent or old history. I realised that, when I was told that Iceland has the oldest Parliament in the world, except maybe the Ancient Greek and Roma discussion fora. It was 1000 years ago that in the Icelandic Althing the following statement was made on how to build up an Icelandic homogenous society. It was said "Með lögum skal land byggja". For those of you who eventually would not speak Icelandic, or Scandinavian as this was in fact the common Viking term "The State should be built upon the rule of law".

A Common European Asylum and Migration Policy

In the particular field you have asked me to emphasise today, I would like to address specially the issue of a common asylum and migration policy. The separate but closely related issues of asylum and migration call for the development of a common EU policy to include the following elements:

a) Partnership with Countries of Origin.
The European Union needs a comprehensive approach to migration addressing political, human rights and development issues in countries and regions of origin and transit. This requires combating poverty, improving living conditions and job opportunities, preventing conflicts and consolidating democratic states and ensuring respect for human rights, in particular rights of minorities, women and children. To that end, the Union as well as Member States are invited to contribute, within their respective competence under the Treaties, to a greater coherence of internal and external policies of the Union. Partnership with third countries concerned will also be a key element for the success of such a policy, with a view to promoting co-development.

b) A Common European Asylum System
The European Council reaffirmed the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-repatriation. Before continuing on the principles of this system, let me show to you what is already achieved.

c) Initiatives Already on the Table
Since the ratification of the Treaty of Amsterdam, the Commission has already submitted several proposals: a Directive on temporary protection in case of mass influx of displaced persons, a proposal for the creation of a European Refugee Fund, a Directive on the right to family reunification a regulation concerning the establishment of EURODAC (system for the comparison of the fingerprints of applicants for asylum and certain other third country nationals to facilitate the implementation of the Dublin Convention), overhaul of the Dublin Convention readmission agreements with third countries, and a Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status.

d) Work Programme Ongoing or Ahead
Communication on a common EU migration policy (November 2000), Communication on a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union (November 2000) Proposal for a directive on minimum standards for conditions for the reception of asylum-seekers (February 2001), Proposal for a Community instrument on determination of the State responsible for the examination of a request for asylum - follow-up to the Dublin Convention (April 2001), Proposal for a directive on the conditions of admission and stay of third country nationals for the purposes of study (first half of 2001), Proposal for a directive on conditions of admission and stay of third country nationals for the purpose of paid employment or self-employed activities (first half of 2001), Proposal for a directive on the conditions of admission and stay of third country nationals for the purpose of unpaid activities.

e) The European Fund for Refugees
On 28 September 2000 Council Decision 2000/596/EC was adopted establishing a European Refugee Fund. The Fund will support and encourage the efforts made by the Member States in receiving and bearing the consequences of receiving refugees and displaced persons. These proposals are in line with the objectives set out by the Tampere Summit, which I will continue to recall briefly. The following main principles were followed:

f) A Common EU Asylum Policy System
This common EU Asylum Policy System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union.

g) Fair Treatment of Third Country Nationals
The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. Tampere declared that a more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia. Building on the Commission Communication on an Action Plan against Racism, the European Council calls for the fight against racism and xenophobia to be stepped up. The Member States will draw on best practices and experiences. Co-operation with the European Monitoring Centre on Racism and Xenophobia and the Council of Europe will be further strengthened. Tampere acknowledged as well the need for approximation of national legislations on the conditions for admission and residence of third country nationals, based on a shared assessment of the economic and demographic developments within the Union, as well as the situation in the countries of origin. It requests to this end rapid decisions by the Council, on the basis of proposals by the Commission. These decisions should take into account not only the reception capacity of each Member State, but also their historical and cultural links with the countries of origin. The legal status of third country nationals should be approximated to that of Member States' nationals. A person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence. The European Council endorsed the objective that long-term legally resident third country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident.

h) Management of Migration Flows
The European Council stressed the need for more efficient management of migration flows at all their stages. It calls for the development, in close co-operation with countries of origin and transit, of information campaigns on the actual possibilities for legal immigration, and for the prevention of all forms of trafficking in human beings. A common active policy on visas and false documents should be further developed, including closer co-operation between EU consulates in third countries and, where necessary, the establishment of common EU visa issuing offices. The European Council is determined to tackle at its source illegal immigration, especially by combating those who engage in trafficking in human beings and economic exploitation of migrants. It urges the adoption of legislation foreseeing severe sanctions against this serious crime The Council was invited to adopt by the end of 2000, on the basis of a proposal by the Commission, legislation to this end. Member States, together with Europol, should direct their efforts to detecting and dismantling the criminal networks involved. The rights of the victims of such activities shall be secured with special emphasis on the problems of women and children. The European Council calls for closer co-operation and mutual technical assistance between the Member States' border control services, such as exchange programmes and technology transfer, especially on maritime borders, and for the rapid inclusion of the applicant States in this co-operation. In this context, the Council welcomes the memorandum of understanding between Italy and Greece to enhance co-operation between the two countries in the Adriatic and Ionian seas in combating organised crime, smuggling and trafficking of persons. As a consequence of the integration of the Schengen acquis into the Union, the candidate countries must accept in full that acquis and further measures building upon it. The European Council stresses the importance of the effective control of the Union's future external borders by specialised trained professionals. The European Council calls for assistance to countries of origin and transit to be developed in order to promote voluntary return as well as to help the authorities of those countries to strengthen their ability to combat effectively trafficking in human beings and to cope with their readmission obligations towards the Union and the Member States. The Amsterdam Treaty conferred powers on the Community in the field of readmission. The European Council invites the Council to conclude readmission agreements or to include standard clauses in other agreements between the European Community and relevant third countries or groups of countries. Consideration should also be given to rules on internal readmission. If there is enough time left, I would like to emphasise on an important piece of work which is done within the Council in the so-called HLWG (High-Level Working Group). In response to an initiative by the Netherlands, the General Affairs Council on 7 and 8 December 1998 set up a High?Level Working Group on Asylum and Migration (HLWG). Its brief was to prepare cross-pillar Action Plans for the countries of origin and transit of asylum seekers and migrants. Action Plans were to be prepared for the following countries and regions: Afghanistan and the neighbouring region, Morocco, Somalia, Sri Lanka, Iraq, Albania and the neighbouring region.

Thinking Behind the Work in Progress: The Action Plans

The Action Plans are based on the premise that there must be a common approach that pays attention to political and socio-economic factors conducive to, or resulting from, flight from the country of origin or negative consequences of migration in a country. In order to be effective, such an approach must be comprehensive, maintained over the long-term and responsive to changes of situation. All relevant measures available to the European Union, the European Community and the Member States will have to be utilised in a coordinated fashion. The Action Plans contain proposals for measures for cooperation with the countries concerned in three integrated categories: foreign policy, development and economic assistance as well as migration and asylum. The Action Plans can be considered as a first attempt by the European Union to define a comprehensive and coherent approach targeted at the situation in a number of important countries of origin or transit of asylum seekers and migrants. Essential instruments of a coherent approach to migration and asylum are dialogue, cooperation and co-development. Important components of the approach are protection of human rights, support for democratisation and the rule of law, social and economic development, alleviation of poverty, support for conflict prevention and reconciliation, and cooperation with the UNHCR and human rights organisations, observance of refugees' and asylum seekers' right to protection, integration of migrants and the fight against illegal immigration (inter alia through Community readmission agreements). The HLWG expressed the hope that countries which have applied for membership would participate in the efforts of the European Union to develop and implement the integrated, cross?pillar approach targeted at the situation of countries of origin of asylum seekers and migrants and transit countries. Since the adoption of the Action Plans by the General Affairs Council, implementation of the measures in them has been the subject of continuous monitoring. In order to speed up progress, the HLWG held a series of special country-specific meetings under the Finnish, Portuguese and French Presidencies. At the same time it invited the Commission to organise informal expert meetings on each of the Action Plans in order to reinforce the implementation process. During the implementation process, the Finnish, Portuguese and French Presidencies, together with the Commission, held regular meetings with the international organisations which had contributed in the preparatory phase and which are involved in the implementation of the Action Plans. The Action Plans have been brought to the attention of the concerned countries. In the absence of authorities empowered to act on behalf of a State recognised in international law, it has not yet been possible to transmit the Action Plans for Afghanistan and Somalia. To make those principles better understandable, I chose to show you how those plans are put in place in a concrete case for which I chose the example of Morocco.

The Case of Morocco

The Action Plan for Morocco has been presented to the Moroccon authorities by Member States, Commission and Council Secretariat. The Moroccan authorities felt that the Action Plan, as presented to them, lacked balance, particularly in its emphasis on the "security dimension". At the same time they stressed the need to work in partnership with the Union in order to enhance the content of the Plan in the framework of the European Union/Morocco Association Council. To their understanding, the approach adopted by the Union in the area of immigration was still excessively dominated by the security aspect, whereas it was now acknowledged by all that socio-economic considerations alone were behind emigration towards Europe. It therefore wished to focus more on the socio-economic dimension of the Action Plan. The Presidency proposed setting up a subcommittee on Immigration and Social Affairs under the auspices of the Association Agreement; its brief would be to enhance the Action Plan in the light of Morocco's comments, in order to turn it into an instrument common to both parties. In the meantime, a certain number of measures under the Action Plan for Morocco have been implemented. Using the MEDA programme, a number of measures in the development area have been implemented. I want to show this to you, just to confirm that this is not all about words, but also about facts. Projects are also funded in the framework of MED-STAT and the various projects dealing with migration issues have been given financial support.

Cooperation with International Organisations and NGOs

Migration was included by the Commission in its Country Strategy Paper for Morocco. On the basis of a proposal from the Commission, the Council agreed to include a reference to migration in the Indicative Programme 2000-2002 for MEDA II, with a budget of EUR 3 million. The Commission has already started the MEDA II programming exercise with the Moroccan authorities. A EUR 3 million project for institutional support for migration issues is planned for the year 2001. Other noteworthy activities include the organisation of a seminar of specialists from Morocco and a number of EU Member States on the judicial fight against illegal trafficking in human beings and a seminar on improving the management of the maritime borders, which was held in Lisbon on 5 and 6 June 2000. Generally speaking, and no longer only on the Moroccan case, I want to emphasise the importance of the cooperation with international governmental and non-governmental organisations. During preparation of the action plans and the implementation phase, the HLWG has worked in close and fruitful cooperation with a number of international governmental and non-governmental organisations. The role of the Office of the United Nations High Commissioner for Refugees in international protection of refugees makes it a vital player in the definition and implementation of a migration and asylum policy which complies with the obligations of the Geneva Convention. As a result of their expertise and know-how, the International Organisation for Migration, the International Committee of the Red Cross, the International Labour Organisation and the International Centre for Migration Policy Development (ICMPD) have contributed to the preparation of the Action Plans and remain key actors in their implementation. Like the Office of the High Commissioner for Refugees, they have been informed of the implementation of the Action Plans. Consultations with Amnesty International, the European Council on Refugees and Exiles, the Migration Policy Group and Médecins Sans Frontières took place during the preparation of the Action Plans. These organisations are also associated with the implementation process through meetings with the HLWG. Beside the cooperation with the institutions, it is obvious that it is important to cooperate with third countries. When approving the Action Plans for Afghanistan, Iraq, Morocco, Somalia and Sri Lanka on 11 October 1999, the General Affairs Council stressed the need to explore the scope for effective action with third countries. Successive Presidencies have presented the work conducted by the HLWG to the American, Australian, Canadian, Icelandic, Norwegian, Swiss and Turkish authorities.

Conclusion

Aa a conclusion one might say that the work of the HLWG, which is both promising and difficult, paves the way for an innovative European policy on migration and asylum, taking account of the root causes of migration and its consequences, in the countries of origin and transit and in the countries of destination. The HLWG has proposed practical cooperation measures within the European Union in order to reduce illegal migration flows. It was particularly important that such proposals be founded on an in-depth analysis of the political and socio-economic factors in the countries selected. Only within the framework of dialogue and cooperation with third countries and international organisations, with the objective of promoting co-development and making development policy more effective, can the European Union hope to remedy the root causes of flight and migration from the country of origin. That dialogue must obviously be aimed at reinforcing protection for human rights, supporting the process of democratisation and promoting the rule of law, combating poverty and supporting conflict prevention and reconciliation. The Action Plans combine general objectives such as "stimulating the democratic process" and technical measures such as "effective implementation of existing readmission agreements". They may therefore appear to focus essentially on security aspects. There remains an impression of imbalance in the Action Plans and the countries at which the plans are directed feel that they are the target of unilateral policy by the Union focusing on repressive action.

In new presentations of the Action Plans to the target countries, it is therefore necessary to dissipate those misunderstandings regarding an apparent imbalance. It is likewise important to ensure that the actual implementation of the plans respects the balance originally sought between the various areas (foreign policy, development, asylum and migration). It would be detrimental to the credibility of this new European Union policy to allow one aspect to predominate, owing to difficulties in implementation. The exercise launched by the HLWG must overcome the reluctance of the target countries which refuse to accept unilateral implementation. The implementation of the Action Plans thus implies a genuine partnership between the European Union and the target countries. There is a danger that the sense of a lack of consultation between the European Union and the Action Plan target countries will lead to a flat refusal by those countries to cooperate in the implementation of the Action Plans. That is why cooperation between the European Union and the target countries is indispensable for the achievement of the objectives of the Action Plans. As a consequence, it would be useful, in order to speed up implementation, to suggest establishing a strategy common to the European Union and the Action Plan target countries in the field of migration, on the basis of the Action Plans and in an appropriate framework, for instance under the auspices of Association Agreements (where they exist). Finally, the implementation of certain Action Plans must take account of the absence of authorities empowered to act on behalf of a State recognised in international law. (Afghanistan, Somalia, Iraq). The non-existence of a partner requires greater attention to coordination and cooperation with international governmental and non-governmental organisations active in these countries. It also implies exploring possibilities for developing partnerships with the neighbouring countries. Although the Action Plans for Afghanistan and the neighbouring region, Iraq and Somalia, already contain measures aimed at the neighbouring countries, this aspect needs to be further developed in future.