The repeated tragedies in the Mediterranean Sea, with hundreds of migrants drowning in the recent weeks not far from Lampedusa’s and Malta’s coasts, have prompted calls for a reform of the European immigration policy. Other cases widely discussed in the media, e.g., the “Leonarda affair” in France, strengthen the need to address this issue which must not be abandoned to populists and far right politicians.
This paper does not intend to give a single solution to the problem; it rather points to key questions regarding the purpose and the instruments of a European immigration policy which policymakers have to answer. Let us remember that, according to Article 67(2) TFEU, the Union “shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. […]”
Which purposes for the European immigration policy?
Let us look at several purposes that the European immigration policy could have. Two remarks: they are not mutually exclusive and they are presented in a random order.
i. Limit immigration
The fear of the stranger is always present in a society, but because of the economic crisis and a feeling of uncertainty due to the pace of change in the world this feeling is even more widespread today. A mix of nationalists, populists and anti-globalisation people currently try to capitalise on this situation. EU leaders must decide whether they want to follow this trail or to offer another solution to soothe people’s fears while guaranteeing a relatively open and welcoming Europe.
ii. Attract qualified migrants (selective immigration)
Europe has an ageing population. Birth rates have fallen in nearly all EU Member States below the ratio of population renewal. This has various problematic consequences for Europe’s economies: there are fewer workers on the job market (potential consequences are lower tax revenues and lower economic growth) and public pension schemes face ever deeper deficits. A solution is to increase the retirement age, but this only defers the skills shortage. Therefore, it is important to let skilled migrants in. Some countries, e.g., Germany, already recognise the urgency to address the issue. Others fear that migrant workers may take jobs away from national workers.
iii. Save migrants’ life
Saving migrants’ life is actually what sparked the current debate. The EU is totally allowed to decide to limit immigration and to send back illegal immigrants to their home countries, but it cannot let people die close to its borders. So, coordinated action must be taken to better monitor the borders and prevent human disasters from happening. Both Member States (in particular, Italy) and the EU (regarding Frontex and Eurosur) have announced new actions; they will have to be concretely implemented and their efficiency will have to be checked.
iv. Fight against organised crime (human trafficking, prostitution, etc.)
Illegal immigrants often pay thousands of euros to enter the EU by illegal means, either by sea (crossing the Mediterranean) or by land (the “Balkan route”). This benefits boatmen who do not hesitate to let migrants die if they risk being caught. Furthermore, illegal immigrants are particularly vulnerable to exploitation as they are afraid to go to the police. Therefore, human trafficking and prostitution thrive at the expense of illegal immigrants, in particular women and children. This is humanly unacceptable. Moreover, it poses a security problem in the host country (an EU Member State). Therefore, the EU, as a space of free movement between Member States, cannot ignore this issue.
v. Distribute responsibility among Member States
The current rules – the Dublin II Regulation 2003/343/EC – determine which Member State is responsible for examining an asylum request: in principle, the competent State is the one where the asylum seeker “first lodged his application” (article 5(2)), which is usually the State through which the asylum seeker entered the EU. The purpose of this rule is to prevent a situation where migrants would apply for asylum in different Member States or a situation where migrants would apply where they have statistically the highest probability to be accepted. However, this regulation is criticised by human rights bodies and organisations and by southern European countries, because it places the biggest part of the burden on border countries. The economic problems currently affecting Greece and Italy further deteriorate the already precarious situation if migrants in these countries. These countries would like the other Member States to accept a bigger share of the migrant’s inflow.
vi. Integrate migrants
Last but not least, an immigration policy cannot only deal with illegal immigration; it must also discuss the fate of those who legally enter the EU. An integration policy is very important both for the migrants, to help them feel at home, and for the host State’s population, to reduce their fears about immigration.
The choice of the instrument depends on which purpose(s) will be pursued by the EU immigration policy.
Sanctions are an instrument that seems appropriate for 2 of the 6 potential purposes listed above: limit immigration and fight against organised crime. At the same time, we must note that this instrument is already quite developed and failed to fully reach its goals yet.
1. Against criminal organisations
This section is already quite developed in existing domestic law. But current rules do not stop the migrants’ inflow. It is important to insist on increasing the cooperation between the national forces of different Member States, and it is also vital to look at data regarding other activities (e.g., prostitution, drug trafficking) to have a clearer picture of sophisticated criminal organisations for which illegal immigration is only one branch of activity.
2. Against immigrants?
Illegal immigrants are victims of human traffickers, but if the purpose of the immigration policy is to reduce the current migration flows, they also offend the law of the host Member State by illegally entering its territory. Currently, migrants facing expulsion are often detained in bad conditions. Furthermore, the risk of sanctions and expulsion does not seem to stop the migrants from trying to cross Europe’s borders. So, even if sanctions against illegal immigrants may be part of a solution aimed at reducing immigration, they are certainly not enough.
3. Against people/businesses who employ undeclared migrant workers
This is probably a key issue. Such sanctions already exist, but they are sometimes (very) weakly enforced. Indeed, illegal immigrants are a cheap labour force and therefore allow businesses who employ them to cut costs. But authorities should realise that undeclared jobs are bad not only for the illegal workers (who are exploited by their bosses and cannot denounce them for fear of being arrested) but also for business competitors who respect the rules about workers’ pay and therefore face unfair competition. So, authorities have a human rights and an economic incentive to act.
ii. Rules on how to expulse migrants
As a complement to sanctions, EU-wide rules of procedure to expulse migrants should be adopted, e.g. which criteria can prevent an expulsion? And how should a country deal with people waiting to be expulsed? Adopting such rules is necessary to spread ‘good practices’, to prevent violations of the Human Rights of the migrants, and to avoid that migrants are not treated the same across Europe.
iii. Prevention in migrants’ home countries
This instrument also already exists in form of cooperation and repatriation agreements negotiated bilaterally with some of the migrants’ home countries. It aims at limiting immigration from the outset. Sometimes, it contributes to selective immigration, e.g., by making it easier for students to get a visa to attend university in the EU. The effectiveness of this instrument of course depends upon the home State’s good will and administrative and police capabilities. It would probably be worth having a thought about whether this instrument should be reformed and developed, maybe by strengthening legal migration possibilities.
iv. Integration policies & rules on the acquisition of the nationality
This is an instrument dedicated to the fifth and sixth purposes outlined above. These policies and rules would determine how to cope with the inflow of immigrants if it is decided that they are allowed to stay.
Indeed, one “solution” to illegal immigration is to legalise the presence of those already arrived. But the risk is to attract far more immigrants, if they have the impression that they will always be accepted despite entering illegally the EU.
Integration policy and rules on the acquisition of the nationality are, however, also instruments applicable to legal migration. If legal migrants are better integrated, European societies will become more cosmopolite, more tolerant and open, and maybe richer.
v. Supervision of borders. How? Who pays?
This instrument is related to the distribution of responsibility between Member States, but also to the aim of saving migrants’ life. The current situation is unsatisfactory for many stakeholders, so European leaders have the duty to think again how to share the burden and whether the budget of existing instruments like Frontex and Eurosur should not be increased. In addition, the means of supervision should be redefined, to improve the effectiveness of the control and minimise the risk that tragedies like in Lampedusa happen again.
vi. Rules on skilled workers’ immigration
At EU level, there is already the Blue Card Directive (2009/50), which allows highly qualified migrants to work in any EU Member State except the UK, Ireland and Denmark. But it may still be too restrictive and all Member States have not implemented properly the text yet. Elaborating such rules should not only involve ministers for Home Affairs, but also ministers for Economics.
Reforming the EU immigration policy should not be done in a hastened manner with the sole aim of gaining media coverage and pretending to address people’s fears. It is an important issue and, as such, deserves some cool-headed thinking before adopting precise rules. One thing is certain: there is no easy solution!