Dr. Ferruccio PASTORE
Centro Studi di Politica Internazionale (CeSPI), Rome
JUST ANOTHER EUROPEAN DREAM?
Why Did the Communitarization of Immigration and Asylum
Policies almost Fail and How We Should Revive It
Rome, 15 November 2002
Lecture in the International Seminar for Experts "European Migration
and Refugee Policy: New Developments", organised by the Cicero Foundation
in the series Great Debates, Rome, 14-15 November 2002
1.The Schengen Model and the Tampere Approach:
from Functionalism to "Comprehensivism"
If we agree, as I think we should, that the communitarization
of immigration and asylum policies in the EU has not worked properly (not
until now at least; not as we hoped): if we agree that the Tampere programme
was a partial failure, in this case, my question, our central question has
to be: why? You may say that this is an obvious question - and it is as a
matter of fact - but I think that the answer is not. In order to find such
answer, it is useful to go back rapidly to the origins of the communitarization
As you all know, European cooperation in the field of immigration
and asylum is a relatively recent phenomenon. In the post-World War II period,
European countries of immigration competed among themselves; they did not
cooperate. And it was a competition aimed at securing the "best"
immigrants, at signing the most advantageous labour immigration agreements
with sending countries, both Southern European and non-European ones (most
of the time, the latter were former colonies). Even when traditional immigration
countries decided, in the early 70s, to shut the door to new legal entries
for economic purposes, that crucial decision was taken by each country in
a uncoordinated, competitive way. National borders were closed without considering
the possible impact of such closure on the neighbouring countries, not to
speak of the impact on the countries of origin.
And yet there was such an impact. And it was substantial, a powerful one.
For instance, in the quick start of mass migration to Southern European countries,
to Italy in particular, the sudden closure of the French borders did certainly
play a role, and not a minor one. So, the past of intra-European relations
in the field of migration management is one of competition, rather than cooperation.
The only convergence existed between Mediterranean labour-exporting countries
and Continental labour-importers. But also that limited convergence ended
early and did not last, however, after 1973-4
European cooperation in the field of immigration management
began only some years after. And it started as a very practical, down-to-earth,
functionalist endeavour. You know very well what it was all about. European
leaders believed there existed a need to accomplish the economic integration
of the continent. This implied - as the European Single Act of 1986 put it
- the construction of an area of free circulation, not only for goods and
capital, but also - as much as possible - for people.
There were at least two reasons for such a strategic choice:
the more structural one was the shared conviction that free circulation of
workers would guarantee an optimal allocation of labour in the Single Market.
A more contingent reason was that, during the late 70s and all through the
80s, border controls (which were often hampered and slowed down by frequent
strikes) proved more costly, in bare economic terms. That was how - following
a classic technocratic and functionalist European decision-making pattern
- five governments decided in Schengen (1985) to suppress internal border
controls among them.
But while that decision was being taken, security concerns started
to spread among security professionals first, and among politicians next.
If we abolish internal borders - this was the mantra - we need to adopt "compensatory
measures" at external borders, in order to avoid that the completion
of the internal market negatively affects the overall internal security of
our borderless space. This was the techno-political logic below the Schengen
convention signed in 1990, and it was basically the dominant paradigm during
most of the 90s.
But that technocratic and functionalist paradigm, although apparently very
pragmatic, soon showed its limits:
a. institutional limits, due to the tight "unanimity jacket" typical
of its purely intergovernmental nature;
b. political limits, due to its weak democratic legitimacy (to say the least)
and to its narrow strategic horizon.
The Amsterdam treaty created the legal possibility to go beyond
that horizon. But it was only the Tampere summit - as you know - which really
opened the political door. Under the Finnish presidency, the European Heads
of State and Government pushed their political will and their rhetoric beyond
functionalism. In the framework of a broad strategy, aimed at building a European
"Area of freedom, security and justice", a comprehensive approach
to immigration and asylum was adopted. The aim of a common migration policy
was no longer limited to compensate the potential negative impact of the suppression
of internal borders. The ambitions grew dramatically: not only controlling
in an effective way the common borders, but managing in an equally efficient
way legal immigration, promoting social integration of migrants, combating
discrimination, ensuring international protection to those in need, and also
struggling against the causes of forced migration worldwide, and preventing
illegal economic immigration through development cooperation. All this (and
more than this) was in the Tampere Conclusions of October 1999.
But this impressive expansion of the agenda - which we can summarize
as a shift from functionalism to "comprehensivism" - was not the
only innovation of the late 90s in this field. While raising their ambitions,
the governments of several member states developed a new discourse to legitimize
European action in the migratory field in the eyes of their constituencies.
The common immigration and asylum policy was not presented any more as a compensatory
strategy aimed at allowing the abolition of internal border controls. It was
explained, on the contrary, as a direct response to the needs and preoccupations
of European citizens and enterprises.
So, beside the shift from functionalism to "comprehensivism", we
witness a parallel shift from an indirect/technocratic legitimation discourse
towards a more direct and "democratic" (on certain occasions even
slightly "populist") strategy of legitimation.
Besides conceptual and political innovation, the post-Amsterdam
phase was also marked by a significant amount of methodological innovation
in the European decision-making on migratory issues. I will not dwell upon
this aspect and will just limit myself to pointing out the novelty of certain
approaches by the Commission. I am thinking of that ambitious attempt at interinstitutional
coordination which is the "Scoreboard" and also of the more targeted
open coordination methods proposed by Commissioner Vitorino both in the field
of asylum and of immigration.
2. Laeken-Seville: The European Pendulum
What were the concrete results of all this? First of all we
have to say that the European Commission was very zealous and efficient in
its propulsive function. On almost every item of the agenda a legislative
proposal was issued on time. It has to be acknowledged, though, that the quality
of these proposals was not always the same and in some cases it was not totally
satisfactory. These limits have to be acknowledged, but the main reasons for
the disappointing mid-term assessment which was made in Laeken (December 2001)
lie certainly not on the Commission's side.
The most evident reason of the slow implementation of the Vienna
Action Plan and of the Tampere manifesto certainly lies in the passive resistance
of national authorities to normative convergence and supranational harmonization.
And it has to be reminded that such resistances existed in spite of the high
degree of, so to say, "genetic" flexibility introduced in this field
by the British, Irish and Danish opt-outs made in Amsterdam.
Besides this structural and encompassing explanation of the
delays in the communitarization
process, another explanation - a more contingent one - can be given. I am
obviously thinking of the political changes which have taken place in many
member states since autumn 1999. At the Tampere table - as you are all aware
- there was a majority of progressive, or Centre-Left, government representatives.
Since then the situation changed in many countries, as for instance, in Austria,
France, Italy, The Netherlands and Portugal.
We should, I think, be careful in not overstating the influence
of the political/ideological variable in shaping actual migration policies
of the States (I am talking about actual policies, not about discourses, which
is something different). But certainly in some of the countries I just mentioned
there were substantial changes, and especially on some of the topics being
currently negotiated at the EU level. This political evolution led to a narrowing
of the agenda and to the imposition of stricter guidelines as concerns the
Commission's right of initiative. I am thinking particularly of the explicit
request by the European Council to the Commission to reformulate the directive
proposals on asylum procedures and on family reunification. The trend towards
a much more severe selection of priorities was only reinforced by the September
2001 terrorist attacks which certainly affected European policy-making, particularly
in certain areas, such as visa policy.
One further explanation can be given of the obstacles met by
the communitarization process. And it concerns, once again, the problematic
relation between national and supranational decision-making circuits. Migration
legislation - as you know - is a constant work in progress. The rapid evolution
of migratory phenomena calls for frequent normative adjustments. Furthermore,
the strong symbolical dimension of immigration policies in contemporary Europe
often pushes new governments to make their own laws in order to show that
they are different from their predecessors. All this was quite clear in the
last couple of years in Western Europe. Most member states reformed their
national legislation. And so did, in particular, some of the crucial players
in the communitarization game, such as Germany, Spain and Italy. At a certain
point, the Commission tried to oppose such trends by invoking a standstill
clause, which would have imposed a legislative moratorium until European parameters
were defined. But, unsurprisingly, the opposite happened. On some key subjects,
such as family reunification, it was the European decision-making process
which was blocked in order to allow national Parliaments to take their own
decisions in an unrestricted way. In other words, we witnessed very clearly
the functioning of a domestic priority and of a "reverse standstill clause"
Now, only a year and a half separates us from the 1st of May
2004, when the transition period, set in Amsterdam, will expire. It is quite
evident, by now, that communitarization will take place only to a limited
extent. On some subjects, such as admission for economic purposes, it is quite
unlikely that any communitarization will take place. But what is even more
important (and disappointing) is the quality of such partial communitarization.
It is very clear that on crucial issues, such as asylum procedures and family
reunification, it will be a communitarization of a poor quality. It will be
a convergence at the bottom, where very often the common minimum standards
will coincide with the lowest common denominator. This is very disappointing,
not only as such, but even more in connection with enlargement, as the message
sent to new members is one of great rigour on immigration controls and a different
one, of a great flexibility, on migrants' rights.
3. Structural Explanations of the Crisis
of the Tampere Approach
Most of what I said until now reflects a set of knowledge and
beliefs which is widely shared among academics, immigration and asylum NGOs,
and also in many institutional circles. Now, I would like to try to go beyond
that and to go a little bit more in depth and ask: are we sure that the crisis
of the Tampere approach can be explained only and entirely by the member states'
jealousy of their national sovereignty and by the recent electoral results
in some European countries?
What I would like to suggest is that there is, maybe, also another
possible explanation - a very basic one - which concerns the socio-economic
foundations of migration policy and has to do with the great diversity of
such foundations among member states.
The current members of the EU have very different experiences
and problems with international migration. Some have been countries of emigration
until very recently, others are receiving countries since more than a century.
Some are geographically very exposed to spontaneous and irregular flows. Others
are more protected, at least against direct illegal entries through "blue"
and "green" borders. In some member states the economy - both the
official and the hidden economy - expresses a strong demand for unskilled
foreign labour. In other member states, this segment of labour demand is either
undeclared or covered by internal deposits of unexploited labour offer. In
some cases, the second (and the third) generation of former immigration waves
play an important role from this point of view, insofar as they are still
relatively marginalized in national labour markets. In some EU countries,
there is a strong demand for skilled and high-skilled foreign labour, which
is - on the contrary - much weaker in countries in which the knowledge-intensive
sectors of the economy are still quite small. And other structural differences
appear in the field of asylum. As a matter of fact, during the 1990s, asylum
policies have emerged as one of the main, if not the main factor of imbalance
in the European admission system conceived as a whole.
So, there was and there is a great amount of structural diversity
among member states in the migratory field. The social, cultural and economic
realities of international migration differ widely in each national context.
Consequently, also the political priorities differ: each country has its national
debate and its material and symbolical political cleavages: regularisation
in today's Italy, compulsory language courses as an integration tool and family
reunification in today's Germany (it was double nationality yesterday), vouchers
or other kind of assistance for asylum seekers in the UK, and so on.
Obviously, some countries share analogous problems: for instance,
the divide between "old" immigration countries - basically Continental
Europe, the British Isles, Scandinavian countries to a certain extent - and
"new" immigration countries - the Mediterranean ones - is a very
substantial divide, which has not been focused early enough and clearly enough
in EU policy-making.
In fact, what happened in Tampere is that the nature of immigration
and asylum as common issues calling for common policies was strongly emphasized,
maybe too strongly. This was very understandable in the context of a shift
towards "comprehensivism". It is undisputable that, if the strategic
aim is not only to manage actual flows, but also to tackle their "root
causes", a European common policy is certainly necessary.
But, in spite of the proclamation of the need for a comprehensive
approach, the decision-making model remained the old one: separate proposals
for each item, and separate negotiations on each proposal. And here is the
trick! Here is where functionalism is back. A shortsighted functionalism,
which gives way only to those decisions which correspond with short-term interests
of bureaucratic and/or political nature.
And in all those cases in which a real compromise among such
diverging sets of interests cannot be established, it is very likely that
communitarization will be but a picture of what already exists. A rigid codification
of the minimum common denominator. An external external or, even worse, a
4. Migration Policy and the Future of the European
One could conclude: well, Tampere was just an exercise of wishful
thinking. Now, we are back on earth, the good, old, solid earth of European,
step-by-step functionalism. No conclusion, I believe, could be more flawed
Certainly, Tampere was also an exercise in wishful thinking.
It was also a political show. But not just that. It was an epiphenomenon of
a phase of a certain cultural growth in the Western European attitude towards
international migration. A phase of cultural maturation which followed years
of irrational discourse, of induced fears, of "a fortress syndrome".
And that sort of growing social and cultural maturity implied an expanding
awareness of the magnitude of international migration as a political issue.
An expanding awareness of the impossibility to "solve the immigration
problem". Of the need to coexist with migration, to face it positively,
although not naively, to make any effort in order to maximise its positive
impact and to minimise its possible negative side-effects. Unfortunately,
cultural and social awareness have not been conquered once and for all. And
it seems that we are now, again, in a phase in which the pendulum of collective
rationality on migration issues swings back.
But I am not pessimistic. There are some encouraging signs.
One, and a major one, is EU enlargement. As a matter of fact, enlargement
is also a grandiose migration management strategy. Shifting the common external
border to the East and widening enormously the area of freedom of circulation.
These are two spectacular policy moves. It is true that both moves are conditioned
by transition periods: a formal one for granting freedom of circulation for
economic purposes to nationals of new member states, an informal waiting period
for admitting fully the new members in the Schengen space. But despite these
questionable precautionary measures is the relatively easy closure of the
relevant negotiation chapters with ten candidates a significant success, although
a temporary and partial one.
In order to go beyond this, it is necessary to identify very
clearly and surmount the factors of the partial failure of the Tampere approach.
One is the institutional factor, and particularly the straitjacket of unanimity,
which almost killed the communitarization process. This need is being debated
in very explicit terms within the Working Group on JHA of the European Convention,
together with the need to strengthen the political and executive branch of
the European migration policy, possibly through the appointment of a Mr/Mrs
JHA, endowed with stronger powers than the current Commissioner (for instance,
political guidance over a European Border Guard and a reinforced Europol),
who could flank a reformed Mr/Mrs PESC and hopefully a Mr/Mrs EMU. The real
question is here:what should be the institutional nature of such a Mr/Mrs
JHA? Should he/she be one of a few super-Commissioners, the core of a full-fledged
European executive body, responsible before the European Parliament, or should
he/she be just a JHA version of the current Secretary General of the Council,
coexisting with a JHA Commissioner?
Besides the institutional factor, there is also a more substantial,
political factor. I believe that a comprehensive approach to migration management
is necessary , but I also believe that the Tampere agenda was probably too
wide. "More Europe" is certainly needed in order to tackle the root
causes of forced migration and to struggle in a just and sustainable way against
illegal migration. From this point of view, not only a common migration policy
is needed, but also a strong and courageous common foreign and security policy.
As a matter of fact, migration policy - if it is framed in a comprehensive
way - is an overarching policy field, with large overlapping with foreign
policy outside and with social policy inside. But in other areas - I am thinking
here primarily of admission policy for economic purposes - the European Commission
has probably been too ambitious or too optimistic. Times are probably not
yet ripe for harmonizing labour immigration policies alone. A real communitarization
in that field will probably be possible only in parallel with a much more
vigorous streamlining of national economic and social policies. And this,
let me express a personal belief and a hope, will be the next great challenge