When in a European context immigration is talked about it usually does not take long before the name FRONTEX pops up. Migration is mostly mentioned in the same breath as “illegal” and “illegal immigration” – the term is unambiguous – must be fought. That is the point at which FRONTEX, the agency for the protection of the EU-borders, comes into play. And this is paradigmatic of the restrictive approach of European politics when it comes to migration.
At the same time, EU immigration and asylum policies look quite presentable – at least on paper. Thus, in this area, the EU has set up a number of subsidy schemes such as the refugee fund, the integration fund and, last but not least, the general programme “Solidarity and Management of Migration Flows” (SOLID).1 However, their budgets are used in a myriad of ways so that barbed wire for border fortifications can even be financed from it. Moreover, there exists with the Blue Card2 a European rule enabling workers from countries outside the EU to be employed, while further laws regarding legal immigration are in the planning stage or in the midst of legislative procedures, stuck somewhere between the Parliament and the Council in their first or second readings. The same holds true for the area of asylum policy. Between 2002 and 2005 European minimum rules were created for the individual asylum systems, while in addition to this there exist rudiments such as the emergency directive for temporary protection,3 which was the reaction in the area of asylum policy to the war in Kosovo in 1999, or a resettlement project by which people who are predictably and permanently prevented from returning to their home countries, are permitted to stay in Europe for good.
Against this one can critically argue that it is impossible to speak of a common immigration policy, let alone of a European asylum policy. Although individual instruments do exist, they are too limited in their range, conflict with each other, do not commit the member states to anything and thus merely form a patchwork that attempts here or there to fix something or other. Some will argue that this rag rug by no means deserves to be called a common European policy or a European system.
Some examples illustrate what is meant: the Blue Card applies only to “highly qualified” persons and explicitly not for people who have applied for or have already been granted asylum. The above-mentioned directive for temporary protection has so far not been applied even once, due to the requirement that the Council of Ministers has to pass a resolution saying that a “mass influx” is taking place. Only then can the refugees be distributed among different states. The minimum requirements for asylum systems in Europe, divided among three directives,4 are currently being revised.
The official reason given for all three cases: the directives contain much phrasing that is too vague and therefore leave the member states too much room for manoeuvre when it comes to application. Or to express it in other terms: the member states are definitely not obliged to observe a certain minimum standard.
This situation results from the restrictive paradigm underlying European border, asylum and immigration policies. The “blocking” of immigration is present in all the determining factors of immigration policy. It is enshrined in the constitutional foundations and, as regards content, is woven like a red thread through all the base lines of European immigration policy.
A glimpse at the treaties, the primary law of the EU, reveals the competence of the EU in some areas, but also its limits. The Treaty on the Functioning of the European Union,5 which is what the former EC Treaty is called now that the Treaty of Lisbon has come into effect, determines the political areas in which the EU possesses competence; it states how far these reach and the procedures through which laws can be passed. Articles 77-80 of the Treaty on the Functioning of the European Union are relevant here. These concern the areas of border control (Article 77), asylum (Article 78) and immigration (Article 79) and commit the EU to solidarity and fair sharing of responsibility in this area between member states (Article 80). The restrictive attitude of the EU towards immigration already becomes obvious in these articles: immigration and asylum are issues first and foremost put into the context of border regimes – that is the message.
Article 77 commits the EU to the goal of a joint management of the exterior borders and the abolition of border controls inside the EU. On the one hand, this article provides the legal basis for the abolition of border controls in 22 of the 27 member states, the so-called Schengen acquis; on the other hand, for the establishment of the border control agency FRONTEX, one of the symbols of the “Fortress Europe” par excellence. If the recent reform of the FRONTEX mandate is considered – it came into effect in 2011 –, it becomes obvious that almost all the requirements of this article have been met or are on the way to being met.
With regard to Article 78, the situation is quite different. According to it, the EU has to develop a common asylum system which contains an asylum status acknowledged throughout Europe. The “European asylum system” which was previously created on the basis of this article consists of the three directives for minimum standards in the treatment of asylum seekers, the controversial Dublin Regulation6 which determines which state is responsible for examining an asylum application and the directive on temporary protection. In comparison to Article 77, the result is rather feeble: as a result of European asylum competence, there are three insufficient laws the revision of which has been delayed due to difficulties, in addition the Dublin ordinance hated by the Southern European member states, yet much praised by Germany and other Northern European countries as well as the emergency directive which does not contain any concrete criteria for its application. In this respect, the road towards a uniform European asylum status is still a very long one.
Only one clause in Article 78 is of some relevance in the framework of European policy. According to paragraph 2 g, for the purpose of better “managing inflows of people applying for asylum”, the cooperation with third (= non-EU) countries is possible. This aims at preventing refugees from ever arriving in Europe and applying for asylum there. Instead, people are to be pre-selected and are to file their applications while still on site. Thus, also border fortifications as well as training and equipment of border patrolling officers in third states can be financed, which usually is done from subsidies such as the refugee fund or SOLID.
All further competences of the EU regarding immigration policies originate in Article 79. Accordingly, the aim of European immigration policy is “the efficient management of immigration flows” “at all stages” as well as “enhanced measures to combat illegal immigration and trafficking in human beings”. Moreover, the article states the competence of the EU for conditions of entry, the rights of third-country nationals residing legally in the EU, “illegal immigration […] including deportation” as well as combating trafficking in people. Yet, for immigration policy, it is decisive to know where the competences of the EU do not lie: according to paragraph 5, each member state preserves the right to determine the number of people coming from third countries who are given work permits. In any case, the European countries have the last word when it comes to admission to the labour market. Consequently, a uniform European regulation is not possible which would make it obligatory for the member states to open the gates to their labour markets for immigrants. With regard to this question, all the European laws are confined to providing the member states with a legal framework – whether the states make use of it or not is up to them.
A recurrent theme to be found in the EU documents is that, in general and on principle, immigration represents a risk, a danger to our society, to public order or health. Accordingly, thinking in terms of security prevails.
The first goal, therefore, is so-called defence against immigration. All in all, immigration is unwanted – that is the basic tenor of European migration policy. For humanitarian reasons, an exception has to be conceded to refugees, and for economic reasons exceptions for certain groups of the workforce are thinkable. It is striking that almost all the European instruments aiming at the admission of people have only a short time perspective. Whether it involves temporary protection, seasonal work or the Blue Card, a principle of “as long as necessary, as short as possible” is inherent in all these directives. This goes to such lengths that seasonal workers can be equipped with permits valid for several years or are promised privileged treatment for the following year only if they leave the EU on time. The message here is also clear: Coming: yes, under certain circumstances; staying: no.
The only instrument conceived with a long-term perspective is the one for resettlement, and there is still a plan to create it. It addresses refugees for whom it is foreseeable that they will never again be able to return to their countries of origin. They are granted a permanent status of residence and normally also the prospect of citizenship in their new home country. Again, it is symptomatic that of all things, this EU resettlement programme has been blocked by the Council, i.e., the representatives of the member states, for more than a year now.
Between the idea of defence on the one hand, and the temporary exceptions on the other hand, a political area of tension unfolds. The legislative bodies in the EU are trying to tackle the problem of having to simultaneously fight and handle immigration by resorting to the principle of “divide and conquer”. The outcome is a specific legal frame, specific rules for each and every group of immigrants. The most remarkable differentiation is the one between refugees and other immigrants. This differentiation is not only impeccably upheld in the wordings of the law. Refugees arriving in the EU are examined by FRONTEX with regard to exactly this differentiation. Only a person fleeing from targeted persecution by the state in his or her country of origin is a legitimate refugee; persons trying to flee “only” the deprivation of any economic future and poverty entirely lack this legitimacy.
How difficult it is to maintain this differentiation could be seen in the months since the beginning of 2011 in the Mediterranean. When visiting the Italian island of Lampedusa in May 2011, we could witness the landing of 1,700 refugees. The majority of these people, originally coming from different African and Asian countries, had fled Libya where they had for some years been living and working and were now on the run from a civil war which was none of their concern. They had lost their employment and their flats and arrived only with the most necessary items – some of them had a small backpack with them, others not even that. So, were these people legitimate asylum seekers or not? After all, there were practically no Libyan citizens among them, so that many might without a second thought be deported to their countries of origin. In contrast to the Tunisians, who arrived at the same time and who also had “only” fled the lack of any economic prospects in their home country, they were lucky and for the time being permitted to stay.
Yet there are also other differentiations being made between further groups of immigrants. With the Blue Card higher qualified and skilled workers are equipped with a work permit in the EU. This is soon to be followed by a few regulations for seasonal workers and for workers and employees sent to the EU by a multinational company. All three of these instruments will contain specific regulations regarding the duration of the permit, visiting rights and family reunion, etc. So, while on the one hand there is a trend towards harmonising in the entire EU, quite the opposite is the case in immigration policy, with immigrants being divided into small groups and equipped with different sets of rights.
All these regulations have in common that they are mutually exclusive. Persons having applied for asylum or having been granted asylum cannot apply for the Blue Card. Persons coming from a third country and being married to an EU citizen are equally excluded although there is no guarantee that a work permit will follow from this marriage.
As regards the chance to enter the EU to work there, the EU relies on the – not really new – concept of circular immigration. This means that people fulfilling the necessary requirements are to be allowed to come and work in the EU, only to leave again after a few years. Both the Blue Card as well as the planned directive for seasonal workers and for employees sent by their companies are clearly based on that concept and allow for time spans of between three to five years.
The EU follows this policy although the concept of circular immigration has proved a failure. At least this is what experience in many European countries, in Germany among others, tells us. The reason is relatively simple: Many people do not go back. This problem is also known to the EU Commission. That is the reason why in the future also seasonal workers from third states are to be animated with the promise of a work permit for two more years to punctually leave the EU again. Otherwise they have to face being refused such a permit or a visa later. The other reason why circular immigration has failed as a concept is that the assumption that immigrants would stay only for a short time has usually served as an excuse for not having to make special efforts to integrate them. If people stay only for a short while, it is not necessary to undertake special efforts for them to settle down and feel at home in their new country.
It is a serious mistake to align the European instruments of legal immigration with this ideal. As in the past, this will serve as an excuse for the absence of efforts at integration and prevent equality before the law between immigrants and EU citizens. Another point is to be considered: If there is an obligation to leave the country, this entails controls. The costs of these controls are high – and not only in financial respects. Already now, running the specific data bases such as SIS, VIS and EURODAC, with whose help visas are issued and illegal crossing of borders and asylum applications are subjected to surveillance throughout Europe, costs many millions annually; the costs are increased by the lengthy development of the Schengen Information System of the second generation (SIS II), which has been running up costs for years now. Such controls will also require policemen and border officials. This means that either the expenses for security organs must be increased or these officials will be missing in other areas. Last but not least, the costs also affect our liberty. Once SIS II and similar systems are put into operation, the immigration and emigration behaviour of EU citizens can be checked at the same time without any special further effort. Those who think this fear is exaggerated should remember that until only a few years ago it would not have occurred to anybody in Europe to have the data collected and analysed of all the passengers of all the flights in the EU. A proposal containing exactly this is being discussed in the European Parliament just now. This is only to indicate that data collection appearing too time-consuming or meaningless today could be a reality in only a few years.
Immigration as a threat, discrimination of immigrants by the law, circular immigration – these are the issues where a left defending human rights and combating xenophobia, Islamophobia and racism, has to start acting. It cannot be repeated often enough: immigration does not represent a threat to our society; it is mutually enriching. An asylum law which only acknowledges prosecution organised by the state and war as reasons for granting asylum ignores the most common reasons for flight. It is of utmost importance to act against any discrimination of immigrants under the law and to oppose with an inclusive approach the method of creating a legal frame for each and every small group.
It is not evident why people coming to Europe should not be able to change their category. Why should we build legal barriers for people temporarily seeking protection in Germany, for instance, preventing them from being granted a long-term residence and work permit which would in any case be better? Such a step would eventually not only improve the financial situation of those concerned and relieve the budget; it would also concede more rights to him or her. The same holds true for all “illegal aliens”. If the problems occurring in this context are to be tackled seriously the first step has to be the legalisation of residence, which implies that those concerned are also enabled themselves to represent their interests.
Usually the reason given why the categories should be impenetrable is that any other practice would encourage abuse of our asylum systems, which is also the reason why the European instruments for legal immigration can only be applied for in the country of origin. This aims at discouraging any attempt to gain a temporary right of residence and settling down in illegality afterwards. From our point of view it is this illegality in particular that poses a problem, having consequences not only for those immediately concerned but for society as a whole. Compared to the damage caused by the exploitation of immigrants and the lack of a social safety net the reference to an exploitation of the asylum systems is a cynical one.
Also, the allegedly high cost of asylum systems is an argument that does not hold. The most expensive factors involved are usually the accommodation in camps or even imprisonment. Similarly expensive are the police controls which are necessary in order to put restrictions on the right to move, such as the residency obligation in Germany. From this perspective it makes the most sense to shape the asylum systems in such a way that the refugees are able simply to integrate in their new country and the labour market. On the European level, one new beginning has already been made and needs to be followed. The programme for resettlement, which was started as a pilot project, should be established as a long-term and consistent programme. However, the European Parliament has already adopted the bill in May 2010. Since then it has been waiting as draft legislation for approval by the Council. Resistance on the part of some member states is blocking the decision.
The situation of immigrants on the labour market is a suitable field of action for the left in the migration debate. The goal has to be complete equality between non-European workers and their German-born colleagues. This is the only way to prevent immigrant workers from being put into the position of competing unfairly with the native-born ones. Equality is decisive in every respect. Only when immigrant workers have a right to equal pay, to the same working hours and cannot be blackmailed because of their illegal status, will it be possible to prevent people from being played off against each other. It is only then that immigrants cannot be used for dumping wages or for worsening working conditions. Thus, equal rights in the workplace are a precondition for a liberal immigration law in the positive sense – both on the European and the national levels. Indeed, the commitment to an open (-minded) Europe which does not barricade itself behind barbed wire and FRONTEX must be reflected on all levels.
1) The websites of the Commission, available in English under ec.europa.eu/home-affairs/funding/intro/funding_intro_en.htm, provides an overview of Home Affairs funding.
2) Council Directive 2009/50/EC of May 25, 2009 on the conditions of entry and residence of third-country nationals for the purpose of highly-qualified employment.
3) Council Directive 2001/55/EC of July 20, 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between member states in receiving such persons and bearing the consequences thereof.
4) The directives are: Council Directive 2004/83/EC of April 29, 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection, and on the content of the protection granted; Council Directive 2003/9/EC of January 27, 2003 laying down minimum standards for the reception of asylum seekers in member states; Council Directive 2005/85/EC of December 1, 2005 on minimum standards and on procedures in member states for granting and withdrawing refugee status.
5) Official Journal of the European Union C 115 of May 9, 2008, p. 47ff
6) Council Regulation (EC) No 343/2003 of February 18, 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national.