The need for a common European Immigration and Asylum policy comes into play as soon as the EU eliminates borders between EU member states, creating an area in which the free movement of persons is ensured. This justifies and demands the establishment of common legislation regarding who has the right to enter this zone and under what circumstances. This is particularly relevant for states on the borders of the EU who have frontiers with countries such as Russia and Romania and who will receive extra money to help in the fight against illegal immigration.
Harmonisation of EU immigration policy
Legislation regarding immigration has always been very much associated with national sovereignty, so changes to legislation have been jealously guarded by EU member states. As a result, people from non-EU countries emigrating from one European state to another were not immediately entitled to the same rights as EU citizens and were reliant on cooperation between governments outside the European institutional framework. The Treaty of Amsterdam and the Treaty of Maastricht began the process of standardising policies concerning immigration, which were ultimately harmonised by Article IV of the Treaty of Nice on “visas, asylum, immigration and other policies in conjunction with the free movement of individuals”. But despite the measures brought in by the various treaties, old habits of inter-governmentalism still exist: shared rights of initiative (between the EU and member states), the need for unanimous voting (to pass new legislation), exceptions in case of public disorder…all of which is further complicated by the opt-ins and opt-outs provided for by the Schengen Treaty, an agreement on the free circulation of people.
Security over humanitarianism
In order to right the wrongs of this legal monstrosity, the European institutions (and particularly the Commission) instigated the ambitious ‘Tampere programme’, which they are currently trying to bring to a positive end. The EU and the Justice and Home Affairs Commissioner, Portuguese native Antonio Vitorino, have tried to make progress but they have struggled to surmount the setbacks generated by the Council of Ministers for Justice and Home Affairs. A major problem is that the EU has made use of its new powers in realm of immigration but in an uneven manner, hindering the establishment of authorised immigration channels in favour of facilitating security. As a result, the EU has managed to establish a legal system to fight against illegal immigration (an issue brought to a head by the events of September 11th 2001), but in regards to legal immigration and the status of non-EU citizens there has not been much progress.
The implementation of the Council Directive granting long-term residence status to immigrants from non-EU countries in November 2003 must be considered a positive move. Yet the directive concerning immigrants’ rights to family unity and reunification does not go as far as the Commission’s initial proposal and does not meet the objective set in Tampere, which stated that all nationals and immigrants holding a long-term residence visa were entitled to the same rights as other citizens. This was the aim of an appeal made by the European Parliament to the Court of Justice.
Proposals regarding entry and residence demands have produced some disappointing results. Having rejected the general proposal, the only regulations that are in the process of being confirmed are those relating to a particular sector such as the right of residence for students or, more recently, the directive concerning the admission of non-EU nationals for purposes of scientific research. This has revealed the Commission’s clear intention to overcome the setbacks that arise from the Council of Ministers of Justice and Home Affairs, and to go through other bodies such as the Competitiveness Council: now that it has come to light that the economy is at risk, everything is carried out with more care.
The Constitution: are the positive intentions in jeopardy?
The Constitutional Treaty is without a doubt a step forward as far as immigration is concerned. The disappearance of the ‘pillar’ structure of the Union, the increase in the areas where a co-decision procedure between the Parliament and the Council of Ministers is required, and increased power to the Court of Justice are, undeniably, important alterations that will encourage a more democratic approach towards the introduction of future rules and regulations. The integration of the Charter of Fundamental Rights into the Constitution, and the possibility that the EU may join the European Convention on Human Rights (currently it is only individual states that can do so as the EU does not have a legal ‘personality’), will also have an undoubtedly positive influence on these political issues.
However, the big challenge facing immigration policy is not so much the changes brought about by the Constitution but the fact that until it is adopted we will have to deal with inadequate legislation approved during the past five years. These laws have been based on a lowest common denominator between nations, ignoring the economic repercussions of immigration and do not comply with the needs of an enlarging Europe. Any reform introduced by the Constitution should be welcomed as it is essential to bring such injustice to an end.