On July 1, 1998 the Austrian Presidency submitted a draft strategy paper on immigration and asylum policy as a basis for the European Union's future immigration policy. The delegations on the K.4 Committee, Justice and home Affairs Council were requested to discuss and comment on this paper by the beginning of September. Although the draft was classified as confidential it was leaked and led to considerable criticism from various
441 See Fernhout, op.cit., pp. 388-389.
442 Since Britain did not declare its willingness to opt in it is not obliged to accept the judgment of the Court of Justice.
443 Baldwin-Edwards, op.cit., p. 505.
444 Jonas Tallberg (2002), “Delegation to Supernational Institutions: why, how and with what consequences?”, West European Politic, Vol. 25, No. 1, January, p.31.
international organizations and the UNHCR for its restrictive concept of refugee protection. On the introduction of the Strategy Paper, the Presidency noted that the current migration policies of EU Member States suffer from major weaknesses and thus, “a number of particularly pressing issues need to be addressed immediately at a European level”. The strategy paper looked back to the 1994 Commission Communication and criticized the EU for failing to implement the suggestions made by the European Commission at the time. Though the drafters of the Strategy Paper, for example, assumed that the EU needed to respond to the migration challenge more efficiently by harmonizing the data on migration movements, “the results were only partially successful”445. “The Union is still unable to give exact details on the number of illegal migrants in EU territory” and “cooperation with the transit states has not succeeded in stopping the influx of illegal migrants”446.
With regard to asylum the report believed that the number of asylum seekers had decreased thanks to the new legislative measures implemented by individual Member States, as asylum reforms in many countries now made that option less attractive447. Despite, however, the legislative changes in Member States the report noted that, “it has been practically impossible to achieve the really crucial breakthrough in preventing or reducing the number of manifestly unfounded applications for asylum”. Moreover, it was noted that a legal provision was still lacking with regard to the concept of temporary admission. To deal with the above deficiencies it was suggested to adopt a global approach, and achieve the reduction of migratory pressures in three main ways: managing migration movement, curbing illegal migration, and introducing new refugee protection. The first way to reduce the migratory pressures begins, according to the report, “in the country of origin when a visa is granted”448. Thus it concluded that a list of states be drawn up whose nationals require a visa. In addition, “a successful migration policy can
445 “CIREA and CIREFI are still not fully satisfactory and the systems are not sufficient” (point 2.1.). The Austrian Presidency Document on Migration/asylum/refugees, European Council Brussels, July 1, 1998, The Council 9809/98 OR.d, Limite, CK4 27, Asim 170,http: //www.groenlinks.nl/partij/europa/austrian1a.htm 14.10.1998, section 4.9. Priority Issues, paragraph 112. 446 “Effective measures to combat illegal employment have still not be taken and speeding up of the voluntary return of illegal immigrants was as strikingly unsuccessful”. Section 2.1. paragraphes 17-19. 447 See section 2.1. paragraph 11.
never be implemented solely by one party involved in this process”449. For this reason, “EU's bilateral agreements with third states must incorporate the migration aspect”450. It was suggested, for example, that economic aid should be linked to the degree of cooperation in the field of migration: “Economic aid will have to be made dependent on visa questions, greater border crossing facility on guarantees of readmission, air connections on border control standards and willingness to provide economic cooperation on effective measures to reduce push factors”451. The paper also offered a model of “concentric circles” of migration policy. While Schengen countries lay down the most intensive control measures, “their neighbors the associated countries should gradually be linked into a similar system which should be brought increasingly into line with the first's circle standards, particularly with regard to visa, border control and readmission policies”. A third circle of states, consisting of the CIS area, Turkey and North Africa, will concentrate primarily on transit checks and combating illegal networks, while the forth circle, composed of Middle Eastern countries, China and Black Africa concentrate on, “eliminating push factors”452.
To prevent the entrance of illegal migration it was suggested that part of the problem stemmed from the fact that Member States were unable to introduce uniform penalties. It was also acknowledged that the vast majority of illegal immigrants entered EU territory through third countries rather than through their own country of origin. Thus, it was, “necessary to involve the transit states in a control system”453. The next filter in the control process is the control carried out at the external borders of Union territory: “It is essential that the Schengen standard is implemented in its entirely and constantly improved at all external European union borders”454. It was recognized that an essential aspect of any effective system of entry control must include mechanisms to prevent the circumvention of the existing rules and to make their breach unattractive455. With regard to asylum, the report noted that a new approach is needed for refugee protection. The 449 Section 4.1. Paragraph 58. 450 Section 4.1. paragraph 59. 451 Ibid. 452 Section 4.1. paragraph 60. 453 Section 4.4. paragraph 89. 454 Section 4.4. paragraph 90. 455 Section 4.4. paragraph 92.
main argument in this respect was whether the Geneva Convention was still adequate to deal with the present realities: “Unlike the traditional claims of persecution by the state or those on particular grounds spelled out in the Geneva Convention, these new threats are much more difficult to prove or disprove”456. Moreover, the approach of the Geneva Convention, according to which a person recognized as a refugee can, “settle permanently in the host country, does not match the widely held idea that it should be possible and internationally acceptable for such people to return home within a foreseeable period of time”457. From the point of view of the Austrian Presidency, asylum law has, “to meet the requirements of the present time rather than the geopolitical situation of yesterday”. It was felt necessary to build a comprehensive legal instrument which, “is based on minimum standards, a uniform notion of what constitutes a refugee, a law on temporary protection and a shared belief in joint responsibility”458. As far as the Geneva Convention was concerned, the paper explicitly stated that the “asylum 'business'” could be, “transformed from a huge machine which at considerable expense produces no results at all for 90% of the problem cases it handles back into an instrument of speedy assistance in the framework of the political possibilities”459. This “can only be implemented on the basis of a Convention supplementing, amending or replacing the Geneva Convention”460.
In the last section of the report, under the title “Operational Plan”, the Council and the Commission prepared a list of possible legal acts. One of the suggestions in this respect was to prepare an asylum convention which would cover the consequences of inter-ethnic displacement, non-state persecution, assessment of national flight alternatives, tightening of procedures, and quota policy461. Another matter which was discussed was the 456 Section 4.6. paragraph 101. 457 Section 4.9 paragraph 127. 458 Section 4.9. paragraph 125. 459 Section 4.6. paragraph 102. 460 Section 4.6. paragraph 103.
461 The convention would also cover legislation concerning refugee acceptance on humanitarian grounds, permission to remain in the host country in individual cases, the protection of displaced persons, the position of legal immigrants unfounded claims for asylum, and their legal consequences for the applicants. Section 5.3. For a detailed analysis see Steffen Angenendt (2002), “Die Europäische Union als Einwanderungsgebiet” in: Werner Weidenfeld (ed.), Europa-Handbuch, Bundeszentrale für politische Bildung, Bonn, pp. 550-551.
standardization of the social systems among EU members. According to the report, “differing levels of welfare provision for asylum seekers is one of the main causes of secondary movements between Union Member States”. Therefore, it noted, that the Dublin system and control of mass migration would be operable only if, “what is on offer is more or less identical in all European states”.
The UNHCR reacted to the Austrian Presidency Strategy Paper with growing dissatisfaction. It agreed with the general assumption that the policies with regard to migration prevention and protection, “need to be considered in a comprehensive manner”462. Yet it was concerned that, “asylum policy and its protection dimension were to be subordinated to the political, security and socio economic dimensions of migration policy, as the Presidency paper appears to suggest”. In general it opposed the idea of asylum policy, “based on a quota system, rather than a subjective individual right based on a legal instrument”. Moreover, it believed that the view expressed in the paper that asylum procedures are, “too costly and complicated and that any asylum seeker arriving in irregular manner should be removed to a third country outside the EU”, violates the principle of non-refoulement. It acknowledged that the 1951 convention, “may have to be supplemented with other legal instruments” in order to address the protection of asylum seekers who cannot be protected under the 1951 Convention. At the same time it believed that the 1951 Geneva Convention, “is still a perfectly valid and viable legal instrument to address the protection needs of persons fleeing, inter alia, internal armed conflict, ethnic tensions, civil war or persecution by non state agents”463.
Amnesty International’s preliminary observations tended to be even more critical. Its main argument was that the very act of creating new protection with the assumption that asylum seekers are a burden contradicts the idea of human rights and the liberal stance of the Geneva Convention vis-à-vis asylum seekers. The Bonn Office of Amnesty International, for example, believed that despite the fact that the Geneva Convention has had difficulty in dealing with modern refugee problems it could still adjust itself to the
462 Preliminary observations by UNHCR on the Austrian Presidency Strategy Paper on Immigration and Asylum Policy, UNHCR Brussels, September 9, 1998.
new developments. Thus, in its view, there was no reason to run the risk of endangering the right of asylum464.
Notwithstanding the critique directed against the Strategy Paper, most of its proposals were finally adopted, first by the action plan of the Commission and later in the proposals and through legal instruments. In December 1998, the Commission and the Council presented an Action Plan which to a large extent resembled the proposals described in the initial report. The main difference between those reports was in the wording, as it was thought that by using weaker language it could avoid further criticism. Thus, for example, instead of focusing on the negative aspects of current migration policy and identifying the migrants as a problem, the Commission argued that Action Plan was primarily intended to defend ideas of freedom and justice. The Council linked asylum policy with the subjective feeling of security of the European Peoples and stated that the Action Plan was primarily designed to reflect on, “the philosophy inherent in the concept of an area of freedom and security”. These notions, according to the Commission, are interlinked: “freedom loses much of its meaning if it cannot be enjoyed in a secure environment and with the full backing of all Union citizens” and residents should realize that, “these three inseparable concepts have one common dominator 'people' and one cannot be achieved in full without the other two”. Thus, “maintaining the right balance between them must be the guiding thread for Union action”. The declared objective, as described in the plan, was not to reduce the number of asylum seekers but to have an area where, “people can feel free and secure”. One of the ways of achieving this is by preventing and combating crime “at the appreciate level, 'organised or otherwise', in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud”.
464 “amnesty international lehnt diesen Vorschlag als einschneidenden Rückschritt des internationalen Flüchtlingsrechts ab. Die Genfer Flüchtlingskonvention (GFK) ist in schwierigen Zeiten entstanden und hat sich in schwierigen Zeiten weitergehend bewährt. Sie könnte sicherlich den neueren Entwicklungen angepasst und verbessert werden. Es besteht aber kein Anlaß, am Schutzrecht der Flüchtlinge gegenüber den Staatengemeinschaften zu rütteln”. See Wolfgang Grenz, Erste Stellungnahme zum Strategiepapier der österreichischen EU- Präsidenschaft zur Migrations- und Asylpolitik vom 1.7.1998, amnesty international, Referat für politische Flüchtlinge, Sektion der Bundersrepublik Deutschland, September 4, 1998.
The Action Plan divided the measures to be implemented into two time periods: two and five years. In the field of asylum, short-term measures included those found to be effective in the Dublin Convention. The Commission did not explicitly mention the need to change the Convention but it was stated that measures to be taken within five years of the entry into force of the Treaty included provisions mentioned in Amsterdam, i.e. adoption of minimum standards with respect to the qualifications of nationals of third countries as refugees, and defining minimum standards for subsidiary protection to persons in need of international protection465.
6.2. The Commission’s Proposals for the 2004 Common Immigration and Asylum