immigration they had encouraged in the two previous decades. With the closing down of traditional immigration channels, claiming asylum became the only avenue left to gain access or refuge in the West. Thus, national asylum adjudication procedures began to be increasingly unable to cope, leading to an almost total paralysis of European asylum systems by the beginning of the 90s.^
In the face of ever increasing cross-border refugee mobility it gradually became apparent that purely national asylum strategies would inevitably be doomed to failure. The need for an international approach was further highlighted in Europe by a second factor, namely the oncome of the Single European Act (SEA). In order to overcome the political stagnation o f the early 80s EC countries decided to promote the creation o f a European shared identity. The Adonnino Committee was instituted by the Fontainebleau Council of June 1984 and charged with initiatives relating to a Citizens’ Europe. Among its various tasks was the drawing up o f a plan to achieve the abolition of all police and customs formalities across intra-Community borders.'* Hoping to increase the momentum, Germany and France signed an agreement at Saarbrücken on 13 July 1984 to ease border controls between them.^
However, it quickly transpired from the internal discussions of the Adonnino Committee that border controls were such an important aspect of public security that they couldn’t simply be removed. Member States came to the conclusion that a set of compensatory measures had to accompany any initiative to abolish border controls among the Twelve. The Brussels European Council of March 1985 therefore stressed
^ This was the case most notably for Germany, Austria and to a smaller extent for France, especially after the fall o f the Iron Curtain and during the Bosnian crisis. See D. Joly supra n° 1.
'* See R. Plender, ‘Competence, European Community law and nationals o f non-Member States’ (1990) 39 ICLQ, p. 599.
® This agreement was the first step in what later became the whole Schengen initiative. The Benelux countries joined the Saarbriick agreement soon after Germany and France.
the parallelism between the abolition of border controls and compensatory measures/ Such measures related mainly to visa policy, common external border controls, a common information system, judicial and police co-operation and principles on assigning States’ responsibility for asylum applications. Following the Committee’s recommendations, and building on the Saarbrücken agreement, in June 1985 France, Germany and the Benelux countries signed the Schengen Agreement on the gradual abolition o f controls at internal borders.^
Following the renewed impetus in European integration, negotiations on the SEA were progressing rapidly. The new Art. 8A EEC was to prove of fundamental importance in the development of a new transnational approach to asylum matters. The second paragraph of this provision stated that ‘the Internal Market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty’. In his White Paper, presented in June 1985 to the Milan summit. Lord Cockfield listed the areas which needed to be dealt with in order to achieve the free circulation of persons. In this context, he mentioned the right to asylum and the status o f refugees, as well as the subsequent intention of the Commission to present some directive proposals in this field.* The White Paper also envisaged the adoption of a common visa policy by 1990.
It was soon apparent, however, that interpretation of Art. 8A EEC varied widely among the Twelve. The Commission and a large number of Member States were of the opinion that the free movement of persons necessarily entailed the
® See K.-P. Nanz, ‘The harmonisation of asylum and immigration legislation within the Third Pillar of the Union Treaty - a stocktaking’ in J. Monar and R. Morgan (eds.), The Third Pillar o f the European Union (European Interuniversity Press, Brussels, 1994), p. 123, at p. 124.
^ This Convention and its follow-up in 1990 was the first (and to this date the only) example of an integrated text containing both the goal of abolishing internal border controls and the necessary flanking measures. In this sense, Schengen has been defined a ‘laboratory’ for further European integration in the field o f free movement of persons. See Chapter 11.2 for an analysis of the Convention.
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abolition o f all internal border controls, for both EC and third country nationals/ Other Member States - the UK being the most vocal among them - understood the provision as only concerning EC nationals, and argued that it had to be applied ‘according to the provisions of the T r e a t y t h u s maintaining border controls on third country nationals.'' They also relied on a Declaration annexed to the SEA, which stated that the Treaty did not ‘affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries’ and that ‘the date of 31 December 1992 does not create an automatic legal effect’. The same Declaration, however, contained a compromise o f sorts by announcing that ‘[i]n order to promote the free movement of persons, the Member States shall cooperate, without prejudice to the powers of the Community, in particular as regards the entry, movement and residence of nationals of third countries’. Over the years, those Member States that agreed with the Commission interpretation gradually joined the Schengen Convention.'^
^ See ‘Communication of the Commission on the abolition of border controls’, Doc. SEC(92)877 final, of 8/5/92. The Commission put forward the idea that Art. 8A EEC entailed an ‘obligation of result’, i.e. it specified the final result to be achieved (the abolition o f border controls) without detailing the means by which this result was to be achieved
The UK maintained that this provision necessarily entailed that the exceptions listed elsewhere in the EEC Treaty on grounds o f public policy, health and security should apply. See D. O’Keeffe, ‘Non-accession to the Schengen Convention: the cases of the United Kingdom and Ireland’ in A. Pauly (ed.), Schengen en panne (European Institute of Public Administration, Maastricht, 1994), p. 145, at p. 149. The article also highlights the reasons why the two countries found it particularly difficult to adhere to the set of flanking measures necessary for the abolition o f internal border controls. It lists among other factors the insular nature o f both countries (which favours efficient border controls) and the lack o f a system of compulsory ID cards which would make internal spot checks impossible (see pp. 147-148).
“ For a sample of these arguments, see House of Lords Select Committee on the European Communities, Border control o f people, 22"‘‘ Report, session 1988-1989, HL Paper 90. For a more theoretical discussion of the implications of Art. 8A EEC see C. Timmermans, ‘Free movement of persons and the division of powers between the Community and its Member States - Why do it the intergovernmental way?’ in H. Schermers et alia (eds). Free movement o f persons in Europe (Martinus Nijhoff, Dordrecht, 1993), p. 352, or K.-P. Nanz, ‘Free movement of persons according to the Schengen Convention and in the framework of the European Union’ in A. Pauly, De Schengen à Maastricht: voie royale et course d'obstacles (European Institute of Public Administration, Maastricht, 1996), p. 61. The British interpretation was eventually endorsed many years later by the ECJ, Wijsenbeekv. The Netherlands, case C-378/97 [1999] E C R 1-6207.
Thus, the Schengen framework became a ‘laboratory’ to implement Art. 8A EEC (see supra at n° 7). To this day it has been impossible to reconcile these opposing interpretations. However, the
Even before the entry into force of the SEA it was abundantly clear that the above differences of interpretation were not likely to be resolved soon. The Commission’s attempts to promote its own interpretation were invariably frustrated. While attempting to respect the schedule o f measures provided by the White Paper, in December 1988 the Commission put forward a proposal to abolish internal border controls on people and elaborated a proposal for a ‘Directive co-ordinating rules concerning the right o f asylum and the status o f refugees’.'^ The Commission based its proposal on Art. 100 and Art. 8A o f the EEC Treaty, but the text was far too ambitious to be acceptable to Member States. Its adoption would have entailed a complete co-ordination of national asylum laws on combating abuse of asylum procedures and exchange of information (Title I); the rules governing responsibility for examining applications for asylum (Title II); provisions applicable during the period o f examination o f a request for asylum (Title III); and the free movement of recognised refugees (Title IV). The whole process would have been governed by a Community Committee for Asylum Questions made up of national representatives with limited consultation powers. The level o f opposition to the draft asylum Directive was such that the Commission never formalised its proposal, officially announcing instead that the legal debate over the competence to adopt measures in the asylum field should be postponed to a later date.’"*
In the asylum and migration field in particular. Member States had already showed equal determination not to be led by the Commission by mounting a legal challenge against the latter’s Decision of 8 July 1985.'^ This Decision, based on Art. 118 EEC Treaty, instituted a notification procedure of national measures concerning the entry, residence and employment of non-EC nationals, thus prompting Member
Amsterdam Treaty found a pragmatic solution to this dispute by, on one hand, incorporating the Schengen framework into the EU and, on the other hand, by allowing the elective participation of the UK and Ireland in selective measures in this field (see further Chapter V).
This Directive proposal is reported by R. Plender, supra n° 4, at p. 600. See also J. J. Bolten, ‘The right to seek asylum in Europe’ (1989) 4 NQHR, p. 381, at pp. 398-99 and p. 402 et seq.
See COM(88)640 final of 7/12/1988.
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States to accuse the Commission of trying to bring migration policy under Community control. The ECJ accepted the applicants’ argument that migration matters fell outside the Community scope and to that purpose it declared the Decision void because it concerned, inter alia, the cultural integration of migrants. The Court maintained, nonetheless, that Art. 118 EEC conferred certain implied powers to the Commission to arrange the consultations provided by the article, underlining that certain aspects of national migration policies were liable to influence employment conditions in the Community and therefore fell under the social policy provisions.'^
Notwithstanding the controversies over the interpretation of Art. 8A EEC, the article nonetheless had a definitive ‘knock-on effect’'^ in so far as it developed the idea that asylum matters were to be regarded as an area of ‘common interest’ for a Community without internal borders. Taking stock of their inability to reach a unified interpretation, the Twelve decided to concentrate their efforts on exploring their common ground. This consisted of the belief that a true free movement of persons inevitably depended on effective compensatory measures, such as those listed in the Adonnino Committee report. Member States that supported the abolition of internal border controls hoped that the setting up of strict flanking measures first, together with the possibility of a good example of internal security to be offered by the Schengen framework, might in future persuade the more reticent Member States.
In order to facilitate co-operation on the compensatory measures, the British Presidency organised a meeting in London, in October 1986, o f the Ministers of the Interior and/or Justice, who decided to set up an ‘Ad Hoc Immigration Group’. This working group comprised five working parties: border controls, visa policy, asylum policy, illegal immigrants and information technology. It was composed o f senior civil servant representatives of the Twelve and was in charge of dealing with all
Germany, France, Denmark and United Kingdom v. Commission joined Cases 282, 283-285, 287/85 [1987] ECR 3203.
” See W. De Lobkowicz, ‘Intergovernmental co-operation in the field of migration - from the Single European Act to Maastricht, in J. Monar and R. Morgan (eds.), supra n° 6, p. 99, at p. 101.
matters relating to asylum and immigration, particularly in connection with the achievement of the Single Market. Remarkably, the Commission was ab initio associated with the works of the Committee in an observer capacity,’* and the Secretariat of the Council was responsible for ensuring the continuity of the agenda. The Presidency o f the Group rotated according to the EC Presidency.
The first achievement of the Ad Hoc Group in April 1987 was the agreement to impose sanctions on carriers responsible for bringing improperly documented aliens into the Community.'^ Concerned by the growing number of intergovernmental groups dealing with free movement of persons issues in the European context,^® the European Council o f Rhodes, in December 1988, decided to institute a ‘Group of Co-ordinators’. It was made up of senior national civil servants, with the participation of the vice-president o f the Commission^' and it had the task of co-ordinating the activities o f the various fora in the field of the free movement of persons as well as having to put a fresh impetus into the 1992 project. The ‘Group of Co-ordinators’ lived up to its task by presenting a very detailed programme of measures to be implemented by January 1993. This document, adopted by the Madrid European summit of June 1989 and better known as the ‘Palma Document’,
The role the Commission effectively managed to play in this body has been highly controversial; see W. De Lobkowicz, supra n° 17, at pp. 107-08
On this point see further in Chapter 11.3.
The oldest of such groups being TREVI, instituted by a Dutch initiative in 1975, with the strong support o f the German and British Governments. It was originally intended as an intergovernmental co-operation framework for combating terrorism, but it was gradually developed into a complex three-tier structure including civil servants and police officers as well as ministers. Eventually TREVI's objectives included combating organised crime and drugs and general police affairs. For a survey o f TREVI's activities and other European co-operation structures in the field see M. Den Boer and N. Walker, ‘European policing after 1992’ (1993) 31 JCMS, p. 3; and also J. Peek, ‘International police co-operation within justified political and juridical frameworks: five theses on TREVT in J. Monar and R. Morgan (eds.), supra n° 6, p. 201.
See COM(88)640 final o f 7/12/1988. The Commission participated in the meetings as an ‘observer’. The reason for this important concession was probably to compensate for Member States’ constant opposition to Commission initiatives in this field within the Community framework.
See F. Webber, ‘European conventions on immigration and asylum’ in T. Bunyan, Statewatching the new Europe: a handbook on the European State (Statewatch, London, 1993), p. 142, at p. 143.
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was to be the platform for any subsequent initiative in the field of free movement of persons and contained several propositions relating to asylum matters. The document listed the following measures as essential:
1) a common visa list for the Community, to be updated every six months; 2) a common list of inadmissible persons;
3) appropriate measures to deal with the ‘asylum shopping’ phenomenon; 4) abbreviated procedures for ‘manifestly unfounded’ asylum claims; 5) harmonised interpretation of international commitments;
6) common measures for external border control; 7) the establishment of a common information system;
8) combating illegal immigration and common expulsion policies.
The Palma document indicated that in defining compensatory measures the Twelve had also agreed to prioritise certain areas. Co-ordination in the asylum field had obviously taken an overall priority, due mainly to two reasons. Firstly, asylum applications were rising steeply and carrier sanctions were only marginally effective. Secondly, cross-border refugee mobility was perceived as a pressing problem by a large number of Member States. Thus, the probability of reaching some agreement in a reasonable time framework appeared high. There was, however, a dangerous side- effect to this process. By framing asylum matters in the context of a border-free Europe and the inevitable necessity of controlling internal movements o f aliens, asylum policy became increasingly identified as a mere part of immigration controls. Member States appeared to lose sight o f the fundamental aspect o f protection and increasingly subjected the refugees to the same restrictive trends they imposed on prospective migrants.
This attitude was exemplified by the two initiatives taken by the French Presidency in the summer of 1989. It submitted two draft Conventions to the Ad Hoc Group, one on responsibility for the processing of asylum applications and the other
on the crossing o f external borders/^ The main points o f the first one had already been included in the Palma Document and endorsed by the 1989 Madrid Council. The Commission on its part decided to lend its full support to this initiative, following a strictly pragmatic approach. The Commission Vice-President Bangemann, in a debate at the European Parliament on 14 March 1990, justified such a choice by pointing out the necessity of working out the conditions for the free movement of persons before the deadline and avoiding sterile and abstract debates on the proper juridical base.^"*
For the contents o f both Conventions, see Chapter II.2. A Convention on the control of external borders was seen as a prerequisite to any lifting of internal controls. It aimed at achieving high levels of common controls at the external perimeter of the Community, so that in theory internal controls would become redundant. In essence, it was the transposition of the traditional national public security function o f border checking to the wider Community level. In the same way, immigration controls were also seen as a vital function o f public security. A Convention on the responsibility for asylum applications should in theory have been about protection fi-om persecution and access to protection. However, by linking the two Conventions, the principle of States’ responsibility for asylum applications became primarily a function of public security and the protection aspect was inevitably played down. Thus, the implementation of a Community goal - the free movement o f persons - brought about a trend in asylum harmonisation, but unfortunately at the same time it changed the very essence of refugee protection in Europe.
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