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Hermes Operation 2011:rescued migrants on board ©Frontex

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The spanish coastguards intercept a fishing boat laden with migrants, © UNHCR, 2007

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© Netzwerk Migration in Europa e.V.

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Immigrants detention centre of Las Raices, Spain
© UNHCR, 2006

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Asylum seekers from various countries
© UNHCR, September 1998

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Finger-Printing of Foreign Refugees
© UNHCR / A. Hollmann / September 1998

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German-Polish border
© UNHCR September 1998

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Detention camps in Europe, 2005


The number of immigrants in EU countries today amounts to about 40 million people, in terms of population, making up a 26th member state. Europe´s population is clearly changing in composition and size. As it grows older and the functioning of social security systems is not guaranteed, most European governments place great importance on the continuous settlement of immigrants and refugees. Europe´s migration, aslyum and immigration policy has two aspects: While there is a clear demand for immigrants because of the declining population in most European countries, there is also a heated debate about controlling migration because of “failed” integration and risks for national and social security. The popular rhetoric of “failed” integration policies and the need to control migration a new reinforces anti-immigrant sentiments and the introduction of restrictive immigration policies.

Towards a common migration and asylum policy in today´s EU

A common migration and asylum policy has developed during the last one and a half decades among EU member states, as a result of dramatically changing migration movements and patterns in Europe. This policy area can be divided into three phases, which characterize the development since the founding of the European Community:

Phase 1: 1957-1990: EC has no competences in the field of migration and asylum, policy coordination only occurs in some fields of migration and asylm such as transnational crime and terrorism.

Phase 2: 1990-1999: intergovernmental cooperation: Given the high numbers of asylum seekers some European states agreed on three important regulations (see below).

Phase 3: since 1999: Asylum and migration policy as a common task in the EU. In order to control the high numbers of asylum seekers with the Treaty of Masstricht (drawn up in 1991, signed in1992 and implemented in1993 ), asylum policy was regarded as a policy task of common interest, to be regulated by the European Community.

The Schengen System (1995) with it´s border control mechanisms and the Dublin Convention (1997) with the save-third-country-regulation makes it easy to control and send back undesired migrants entering one of the Schengen-Member States. This established mechanisms resulted in decreasing numbers of asylum seekers and increasing numbers of undocumented (so called illegal) migrants.


Schengen Agreement (1995)

In 1995 representatives of five EU member states – Germany, France, Belgium, the Netherlands and Luxembourg – signed the so-called Schengen Agreement. The agreement aims at abolishing inspections of people at internal borders and in return it obliged the participating states to improve security along their state borders. The two main elements are:1. A joint system of visas including police cooperation and the handling of asylum applications; 2. Schengen Information System (SIS): This system stores information and personal data for the entire Schengen area that can be called up at any point on the Schengen outer border.

Dublin Agreement of the former European Community (1997)

The Convention determines the state responsible for examing applications for asylum lodged in one of the Member States of the EU. It includes a system of re-admission agreements referring to the Third State Rule: An alien who enters from a safe third state can no longer appeal to the basic right to asylum Through the Amsterdam Treaty since 1999 (signed 1997, implemented in 1999) asylum and migration policy is mainly regulated by EU as this policy field moved from the third pillar to the first pillar towards a common policy in order to establish an “aera of freedom, security and justice”.


Two cornerstones are important for the development towards the common European asylum and migration policy.

1. Cornerstone: Summit of Tampere (1999)

EU declares the establishment of a Common European Asylum System based on human rights, in particular the application of the Geneva Refugee Convention and other relevant HR relevant instruments. In order to achieve these aims, the following policies according to Tampere should be developed: “Partnership with the countries of origin”, Creation of a Common European Asylum System, Measures to guarantee a fair treatment of third country nationals, Management of Migration flows. These policies were transformed into a catalogue of measures relevant to these goals, to be taken within five years . After five years, the European Council launched and adopted the Hague programme.

2. Cornerstone: The Hague Programme (2005-2009)

The Hague programme is a new five-year programme promoting closer co-operation in justice and home affairs from 2005 to 2010. The programme focuses on setting up a common migration and asylum policy for the 25 EU member states. Restriction and control of immigration. Given the terrorist assaults on New York (2001) and Madrid (2004) the Hague Programm gives prioritizes the security aspects of migration and measures that reinforce restriction and control. The combatting of terrorism is mentioned in the Hague Programme as the first and central task of the common policies in Justice and Home Affairs. Within the immigration and asylum policies, the security aspect is central and takes the form of border checks and the “fight against illegal migration”. Important elements of these policy measures are:

- Harmonisation of asylum applications between the member states (including f.e. harmonized visa regulations, repatriation policies and measures relating to border management);

- Information systems: Linkage of SIS II (Schengen Information System), VIS (Visa Information System) and EURODAC (identification of asylum seeker´s fingerprints) and FADO (Image archiving system) in order to combat illegal immigration;

- Discussions on the exterritorialisation of asylum procedures in the countries themselves; o Establishment of FRONTEX in May 2005: management of restrictive border control in the EU member states;

Detention Camps and increasing misery of detention camps along the European borders, in particular in Mediteranean and eastern border countries.

Protection of refugees: regresses and progresses

At Tampere the intended harmonisation of asylum policies in European member states was to establish a Common European Asylum System based on the full and inclusive application of the Geneva Convention. Nevertheless the discussions and measures after Tampere are very often not driven by the spirit of Tampere, but driven by the desire of most European governments to keep the number of incoming asylum-seekers as low as possible and to tackle perceived abuse of their asylum systems. Negotiations on the common asylum system took place in a deterioating public climate of growing hostility towards asylum seekers and refugees.

The process of harmonisation of asylum policies in Europe results in both regresses and progresses: On the one hand, the absolute respect of the right to seek asylum, as reaffirmed in Tampere, has been undermined. Most of the provisions concerning the “safe third country regulation” don´t protect someone seeking asylum. Finally some provisions allow unacceptable deviations from international minimum standards, f.e. family reunification which doesn´t respect the regulations laid down in the children’s convention. On the other hand, the agreement of certain minimum standards in all member states was achieved with regard to asylum, in particular regarding the capacities and procedures in the new member states, e.g. the granting of a subsidiary form of protection, the recognition of non-state actors, gender- and child-specific form of protection.

Combat of illegal migration and prevention of refugee movements

The cooperation with countries of origin is nominated as one of the cornerstones of common policies, but is largely restricted to control aspects (see Rabat Conference July 2006). Meanwhile Frontex operated in front of the shores of Senegal, Mauretania and Kapverds, in July 2006 a joint conference of 57 African and European countries worked out an Action Plan in order to improve migration management between European and African countries. The EU in this context clearly appeals to the respect of human dignity and fundamental rights of migrants, but this is often in harsh contrast to the living conditions of the refugees in countries of orgin, of transit and of destination.

The main areas of the Rabat Action Plan are as follows:

- Measures against illegal migration: setting up efficient readmission systems between countries concerned , the reinforcement of national border control capacities of countries of transit and departure;

- Measures of development: encouraging capacity building in developing countries, access to education in developed countries, and avoiding brain drain by incouraging return migration

Integration of third-country nationals living in the EU

The integration of third-country nationals into society relies on comprehensive integration policies. This includes integration into the labour market, education and language skills, housing issues, health and social services, nationality/citizenship and respect for diversity. All these areas are still part of national legislation. Nevertheless in the light of the integration of more than 40 million migrants in all 25 member states it is necessary to consider integration policies on a European level. This is why the EU Parlament and Commission foster strategies to fund integration policies, to monitor their effects and to facilitate the sharing of best practices throughout the EU. The Hague Programm stresses the necessity to exchange information and experience, but does not touch on the issue of domestic competences. The EU integration policy faces multiple challenges regarding the inclusion of third country nationals:

- Some important directives of non-dicrimination and equal treatment of third country nationals have been taken, but have not yet been fully implemented: Directives of family reunification (2003/86/EC) (2003) and of racial discrimination and discrimination in employment (Directives 2000/43/EC and 2000/78/EC) have not yet been adopted in all member states.

- The European Inclusion Index, a measure for integration, shows that across all five areas (labour market inclusion, long term residence, family reunion, nationality and anti-discrimination) the Member States are a long way form providing migrants with the “rights comparable” to EU citizens they promised at Tampere. The second edition of the Index, to be published in 2007, will include all 25 members of the EU. It will be interesting to see whether the 19 new member states have similarly varied policies.

- Generally, integration strategies target legally resident third country nationals, and consequently directly exclude undocumented workers. Undocumented workes are amongst the most vulnerable groups in European societies and would benefit most from policies to raise awareness concerning their rights and entitlements.

- Legal (economic) migration is a national “issue”: National competence is retained in the area of legal migration. The Hague Programm states that the “determination of volumes of admission of labour migrants is a competence of the Member States”.

Conclusion: Human Rights to Migrants and Refugees?

Migration and immigration policies in Europe are dominated by two main developments. On the one hand, EU policy refers to migration mangement/security and border control practices in which immigration control is strictly linked to anti-terrorism measures such as the “establishment of an area of freedom, security and justice”. On the other hand, the policy aims at the harmonisation of asylum policies in Europe, which results in a lowering of standards and a decreasing number of asylum seekers. The consequence is the increase in the number of illegal migrants who are excluded from a wide range of human rights.

In 2003, the UN General Assembly adopted and ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), which aims to protect the migrant workers’ rights,including irregular migrants. It is no coincidence that non of the EU member states has yet signed the ICMW, although the European Parliament started an initiative in order to support the signing of the Convention. With this convention, human rights can be used as a powerful tool for the empowerment of migrants and their mobilisation in the migration policy process in future, in a Europe in which all EU-countries are at present very reluctant.

Harsh critics state whilst Europe claims to be building a “common space” for freedom, justice and security with the Hague Programme, it is creating an excluded underclass of second-class citizens from non-EU member states and is building up a “fortress Europe”.

Andrea Schmelz, Network Migration in Europe, 2006




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