Some Thoughts about the Yearly Report of the European Commission on Immigration and Asylum

The first thing even before reading the 3^rd edition of this report on the year 2011[1] is to remember its origin. It goes back to the Pact on immigration and asylum concluded in 2008 under the French Presidency. The idea was then to have a report about the implementation of this Pact in order to feed the annual debate about migration policies that the European Council was supposed to have at its June meeting.

After 2 editions of the report following the order of the commitments subscribed by the EU and its Member States in the Pact, the 2011 edition changes as announced by the Commission in 2009 in its communication on a tracking method for monitoring the implementation of the pact. But, strange enough, the pact is not even anymore mentioned! Moreover, the report has not been the object of the strategic debate envisaged in the European Council. This tells us something about the (in)coherence of policy-making even at EU level even when it is about the main priorities defined by the Member States themselves. It is probably also one of the consequences of the financial crisis of the Eurozone attracting all the attention of the Heads of State and Government during their meetings.

The report and especially its annex appear to be a long catalogue listing what has been achieved during the past year and what is coming up in the future. One may have the impression that the usefulness of such exercise is limited: the information provided is indeed mainly descriptive and cannot be considered as an evaluation of results. Actually, the report and in particular its long annex based on contributions of the European Migration Network and from the Member States provides to the reader a lot of information that are not (easily) accessible. It nevertheless true that it does not allow to measure the progress of the EU in the development of an immigration and asylum policy; in particular, it does not replace the scoreboard on the implementation of the five-years programme for Justice, Liberty and Security (currently the Stockholm programme) that was compiled about the implementation of the Tampere conclusions and The Hague programme but has mysteriously disappeared, unless it survives secretly as an internal document which would not really be a progress in the field of transparency…

The general tone of the report is a bit unclear. It starts with a frightening introduction where the reader is told that there is an “increasing migratory pressure” plus a “misuse of visa liberalisation” (page2) and continues with a positive statement about the impact of labor migration despite the economic crisis (page 4), a confirmation of the migratory pressures burdening the EU despite the small numbers of migrants quoted to support this statement (page 8), a call for a balanced debate not dominated only by anti-immigration rhetoric (page 17), the denunciation of the image of Fortress Europe as a caricature (page 17) before concluding with putting the emphasis on the roadmap on migratory pressure adopted by the Council in April 2012 (page 18) which actually refers us to the introduction…

The list of what has been achieved shows that 2011 has been a quite productive year as illustrated by the following examples (despite the weaknesses that we will personally underline in brackets).

Among the legislative instruments adopted, one will notice:

• the directive on the single permit and common rights of labor migrants (finally!);
• the amendment of the Frontex regulation of 2004 reinforcing the powers of that European Agency;
• an updated version of the anti-trafficking directive;
• the legal basis for the European Agency for the Operational Management of Large IT Systems in the area of freedom, security and justice;
• the recast of the qualification directive defining the persons who can benefit from international protection in the EU which is the first piece of the Common European Asylum System to be finalised in 2012.

Regarding the legislative package on asylum that is still the object of negotiations between Council and Parliament that are difficult but in progress, one will notice with surprise that the Commission remained silent on the historical decision of the European Court of Human Rights in the MSS case about the malfunctioning of the Dublin system (maybe was it the best option to avoid to underline that an external Court puts order in the EU despite its commitments towards human rights…).

Some tools have been put in place:

•  the Immigration Portal launched on internet;
• the European Asylum Support Office (EASO) that started to function (very) progressively;
• Rabits (Rapid Border Intervention Teams) and Asylum Support Teams designed to help Member States that have been experienced on the ground for the very first time in Greece;
• a new (rather weak) agenda on integration adopted by the Commission.

Regarding the external dimension, one will notice that:

• the VIS (Visa Information System) has been launched for the Northern African region and should reinforce the visa policy and the fight against illegal immigration;
• one more (out of today only 4 in total) mobility partnership has been concluded with Armenia (is this country really a priority one?)
• a Regional Protection Programme has been launched in Northern Africa (let us wait and see where it will lead as the results of the two firsts regional protection programmes are mitigated)

On the side of evaluation:

• the readmission policy has been happily analysed in a very critical way (probably to underline at the attention of the Member States the problems encountered by the Commission during negotiations with third countries);
• the transposition of the directive on long term residents has been the object of a report showing that it had a weak impact with only 2000 persons having acquired this status in France and Germany (true to say that the advantages of this more or less European status are not obvious);
• the pilot study on integration indicators has (finally) been finalised by Eurostat (seven years after the Common Basic principles adopted by the Council underlined their importance…)
• a green paper on family reunification has been launched after long hesitations of the Commission due to the (really difficult) political climate opposed to immigration.

Among the impressive pending initiatives that have been prepared by the Commission in 2011, apart of the proposals for a directive on seasonal migration and intra-corporate transferees that are still under negotiations showing that legal migration remains definitely one of the most difficult issues to deal with Member States still defending in the Council of Ministers the rest of their sovereignty in this area, let us mention:

• the Eurosur proposal related to the fight against illegal immigration in particular through sea;
• the launch of negotiations for mobility partnerships with Tunisia and Morocco but not Egypt (finally the serious business with important Southern third countries of emigration will start) that will be difficult due to the conditionality that the EU and its Member want to impose;
• the proposals for external agreements on the portability of social rights (a very important issue finally taken into consideration)
• the two new funds (one for asylum & migration and the other for internal security including borders) for an envisaged budget of 8,4 billions of Euros during the period 2014-20 instead of 3,9 billions for the four existing funds which is an extremely significant increase (but let us wait and see for the results of the negotiations on the EU budget)

Some future initiatives have also been announced:

• a merge of the two directives on students of 2004 and researchers of 2005 (could students benefit from this joint package with researchers whom have been the object of a really innovative instrument?);
• Smart (for whom?) Borders with two new databases (the Exit/Entry System to increase control on illegal immigration and the Registered Traveler Programme to facilitate the travel of bona fide persons);
• guidelines on temporary permits after the passage of illegal migrants from Tunisia to France with the help of Italy that delivered “humanitarian” residence permits (a weak instrument proposed but a possible interesting step forward in the competences of Member States)
• a green paper on economic migration (that will lead to a very difficult but necessary debate to relaunch the agenda in this field where the last outdated Commission action plan dates of 2005).

It is also interesting to have a look inside but also outside the report to what has not been (well) done:

• the apparent lack of ambition of Member States in the transposition of the Blue card directive aiming at facilitating the admission of highly skilled workers (as the Member States had to transpose this directive for 2011, let us hope that the Commission will deliver on time that kind of report on 19 June 2014 as foreseen, which is already quite late if it is about putting political pressure on the Member States).
• an evaluation of the Global approach to migration which has been the object of an interesting but curious Communication of the Commission looking forward instead of backwards;
• the field of migration and development presented as a priority but where concrete progress is quite limited since years regarding brain drain, diasporas and remittances, without even speaking of the (indeed very difficult) subject of the recognition of third country degrees hold by migrants. This is actually the only part of the Global approach that has been the object of an evaluation of its results in a staff working document of the Commission[2].

Finally, which lessons can we draw from this report for the future?

Firstly, the Commission underlines rightly that it is necessary to implement the existing instruments before imagining new ones. This advice (that does not really flow from the content of the report but is obviously wise) will nevertheless be difficult to implement if serious progress is not made about the evaluation of the effects of instruments. The EU needs to shift from basic quantitative to real qualitative evaluations by devoting to ex-post evaluations the same attention to ex-ante so called “impact assessments”. Let us hope that the current violent fight engaged by the Parliament against the Council about the Schengen evaluation mechanism will not be only one more inter-institutional battle distracting the attention from the substance of evaluation (also because the Parliament has taken a wrong legal position in that debate).

Secondly, the occasion that the EU has missed towards the Arab countries undergoing revolutions in 2011: instead of showing them consideration in the (indeed difficult) debate on migration and imagining at least to offer them facilitations for the delivery of short term visas in the future, the EU sinked into a debate about the possibility for Member States to reintroduce internal border controls in the Schengen area. This was not only a false debate (the real issue is obviously about the effectiveness of external border controls), but also an internal debate during which we forgot our neighbors. The fact that the Commissioner in charge of Home Affairs admits courageously this historical mistake in her speech at the opening session of the Migration Policy Centre in Florence[3] does not bow out that the Commission obeys nowadays to the Heads of State or Government by preparing a proposal that raises several legal questions of compatibility with the treaties.

This story is unfortunately one more occasion to underline what is cruelly missing in the European Union: solidarity between Member States without which it is impossible to build the common policies on visas, borders, immigration and asylum requested by the Treaty of Lisbon adopted by the same Member States…

Philippe De Bruycker, Deputy Director of the MPC

The views expressed by the author are not necessarily the views of the Migration Policy Centre.