ILPA Response to the European Commission's "Community immigration policy"

ILPA Response to the European Commission's "Community immigration policy"

A COMMUNITY IMMIGRATION POLICY

Submission of the Immigration Law Practitioners’ Association to the House Of Lords Select Committee on the European Union

The Immigration Law Practitioners Association (“ILPA”) has been invited by the House of Lords Select Committee on the European Union to give evidence to the Committee in respect of its inquiry on the European Commission’s Communication, A Community Immigration Policy (COM (2000) 757 final). These submissions set out the views of ILPA in response to the Communication.

Executive Summary

1. The Commissions Communication implicitly recognises the number of tensions between:

The interests of the Member States;
The interests of business;
The interests of the individual migrant.

In looking at a Community Immigration Policy it is vital that the appropriate balance is stuck between these often overlapping and competing interests.

2. Historically, the European Community’s migration policy in respect free movement has emphasised a “rights” based approach in which the migrant’s interests are foremost. ILPA believes that any European Union immigration policy must take place within the framework which protects the rights of migrants.

3. The “demographic deficit” and shortages in the labour market are likely to increase the migratory pressures on the European Union. These pressures should be managed in an effective way, again by balancing the interests of the Member States, businesses and the individual, so as to avoid potential reduction in growth and inflationary pressures which labour shortages may bring.

4. In assessing the economic factors in favour of migration, it is important to note that while there has been a significant period of sustained growth in the European Union economy, and economic indicators are good, the Community has only recently joined the debate on economic migration. The economic prospects are, at present, more uncertain and the Community’s role in assessing fluctuations in the labour market must be questioned.

5. If the policies of “zero” immigration of the past 30 are little more than a political myth and have disguised the fact that there has been substantial economic migration, mainly from white, developed countries in this period.

6. A Community immigration policy needs to focus but only on high skilled labour shortages but also the need for low skilled labour. The Commission’s focus on the possible social difficulties of encouraging low skilled labour migration to the European Union is misplaced. Low skilled migrants do not generally compete with national workers for jobs as they fill posts for jobs which national workers do not wish to do.

7. The continuing problems of illegal migration has resulted in the polarisation of public opinion for and against immigration, often in the context of amnesties or regularisations. A more rational Immigration Policy should aim to channel potential legal migration into legal channels to satisfy clear labour market demands in order thereby eliminating the misery of undocumented migrants and the politicisation of the immigration debate.

8. The Communication does not address the recent structural changes in the labour market. It is vital that a Community immigration policy accurately reflects the changing patterns of work and business. A successful migration policy should also encompass short term service provision and that the Community should encourage Member States to implement the provisions of GATtS.

9. The Community’s role in assessing appropriate immigration levels can only be carried out successfully if it is able to respond quickly enough to changes in the labour market. The question of balancing the interests of the Member States and business is also important in this respect as it is increasingly business which dictates labour market needs. Member States have not shown themselves able to move quickly enough to react to those needs.

10. Any model used for migration adopted by the European Union should advocate a rights based approach, set out in legally binding rules which can be interpreted and enforced by the courts. Any legislation adopted should provide procedural guarantees, including time limits for decision making.

11. Any Community policy should also enable those lawfully present in the EU for a short term period to remain in a Member State if the conditions of taking up employment have been fulfilled ILPA welcomes the suggestion that work seekers should be granted admission to the Community for up to six months in order to search for possible legal economic opportunities.

12. The Community needs to adopt a coherent strategy on both short term and long term migrants, with the possibility that those with short terms work permits can move to definitive long term resident status. Any Community policy must seek to address the needs of migrants for security of residence. Any policy should also have the flexibility for employees to switch to self employment (and vice versa) in recognition of changing work trends.

13. The Communication has not fully addressed the important link between integration and initial admission. There is likely to be reluctance on the part of those migrants deciding to move to a particular Member State where family union and security of residence in that state remain uncertain.

14. The Communication does not address one of the principal issues of integration, as set out in the Tampere conclusions, namely ensuring comparable treatment of migrants and EU nationals as far as possible.

15. There are inherent problems with partnerships with countries of origin which seeks to limit migratory flows by prohibiting migrants from leaving their own state. The Community law principle of respecting as far as possible the choice of the individual whether to move or not for economic reasons should remain the foundation of the Community’s extension of immigration law towards third countries.

16. The issue of brain drain does not seem to be as serious as it is made out to be in the Communication. In the European Union’s case, with differential rates of pay and possibilities among the Member States, brain drain has not occurred.

17. The Communications emphasis on migrants’ continued links with their state of origin poses problems both in terms of the security of residence and the Community’s commitment to the integration of migrants. Particular problems may arise as continued links with the country of origin may be taken as evidence of lack of commitment of Member State, with possible immigration implications.

18. ILPA remains concerned as to the Communication’s emphasis on security and prevention measures in managing migration flows.

19. There is an inherent contradiction in the Commission’s concerns to safeguard legal channels for those who seek protection on humanitarian grounds and its highly restrictive visa policy.

20. The Community must adopt a coherent policy on illegal migration. Its efforts so far are unsatisfactory. In addition the question of return must be looked at within the context of a coherent and fair admission policy which would itself reduce illegal migration.

1. Introduction

1.1 A new competence was given to the European Community in matters of immigration asylum by the Treaty of Amsterdam. The objectives set out in the Tampere conclusions in October 1999 have provided the framework for the Community to address now a common policy on immigration. Elements of that policy, in the form of a number of proposals made under Title IV of the EC Treaty, are underway. In the meantime, acute shortages of skilled workers in the labour market and issues regarding the “demographic deficit” anticipated within the EU over the next 10 to 30 years have driven the debate on the question of relaxing immigration controls both in the UK and across the EU and added a wider dimension to the arguments as to whether immigration can benefit the EU economically. ILPA welcomes this debate in which it has actively participated at both UK and EU levels.

1.2 The Commission’s Communication represents an attempt to synthesise the economic and demographic factors involved in the arguments in order to propose ways in which a balance can be struck to promote immigration, both from an economic and a partly demographic point of view. It should be noted that these issues have been a matter of public debate for some considerable time and have already resulted in a number of Member States taking steps to encourage immigration, particularly to sectors in the labour market with shortages in high-skilled labour. The Commission’s paper has therefore appeared at a time when the debate has been underway for a considerable time and has, to some extent, been concluded in favour of economic immigration. It is unfortunate that the Commission did not feel, with its clear competence in this area, the possibility of joining the debate at an earlier stage and seeking to form rather than to follow public opinion.

1.3 In addressing the issues raised by the Select Committee, it should be pointed out at the outset that the Commission’s Communication implicitly recognises a number of tensions existing between:

The interests of the Member States;

The interests of business;

The interests of the individual migrant.

1.4 In looking at a Community Immigration Policy, it is vital that the appropriate balance is struck between these often overlapping and competing interests. Historically, the European Union’s approach to migration of nationals of the Member States has been driven principally with a view to completing the Single Market. With the ending of the transitional period for free movement in 1968, the Community (as it then was) put into place a model for migration which placed a strong emphasis on the rights given to individual migrants to move, rights guaranteed by the Community and subject only to derogations by the Member States in very specific circumstances. The basis of these rights was clear and unconditional provisions of free movement, removing discretion from Member States, underpinned by equal treatment rights for migrants. The aim was to ensure free movement of Community nationals and their families “in freedom and dignity.” The Community model of migration clearly sought to balance the 3 interests: the need for the Member States to protect their population from threats to public policy, the need of business for labour and the needs of the individual migrant to exercise a choice to move for economic purposes and to have security of residence and benefit from equal treatment. This has been a successful example of managing migration for an economic end, with the emphasis firmly placed on the right of the individual.

1.5 The Community’s experience of extending free movement provisions to third country nationals has been less successful. While the extension of free movement to the EEA countries was uncomplicated, the ratification of Association Agreements with third countries, notably Turkey, Central and Eastern European and Baltic States, have proved more problematic. This has been due largely to the reluctance of Member States to accept the extent of the free movement provisions contained in those agreements and implementing decisions negotiated at a time of supposed “zero immigration”. In addition the intergovernmental approach to issues of migration of third country nationals led to an emphasis on aspects of policing and security, to the detriment of the economic objectives of the Community. The Commission should bear in mind the Union’s successes and its failures when constructing a viable immigration policy.

1.6 The purpose of these submissions is to analyse the Commission’s communication in detail and to answer the specific questions raised by the Select Committee in light of these competing interests.

2. The demographic and economic context.

2.1 The Commission has identified a number of trends in the demographic situation in the EU, notably the slow down in population growth and a marked rise in the average age of the population. The decline in the working age population, beginning in the next 10 years and the long term rise in the percentage of the population who are over 65 are identified as issues of concern to the EU both in terms of the economic consequences and the impact on social security regimes.

2.2 The Commission recognises, realistically, that increased legal immigration cannot, in itself, be considered as an effective way to offset these demographic changes, but should be part of any overall structural strategy to tackle these problems. ILPA agrees with this analysis and believes that such a strategy can only be achieved if the competing interests we have referred to above are balanced.

2.3 The interests of the Member States are clearly to maintain or increase revenues from a successful economy in order to pay for the social costs of an ageing population without disrupting social solidarity.

2.4 The interest of business are to have a flexible labour market with sufficient workers (either highly skilled or low skilled) to meet demand and to keep wages as low as possible in order to remain competitive in the global economy.

2.5 The interest of individuals, in this context that of migrants, are to improve their living and working conditions, to achieve their full potential and, to some extent, to satisfy their curiosity as to what the world can offer them.

2.6 However, the extent and the consequences of demographic changes should be looked at carefully. Projections as to net immigration figures vary [1] significantly and this will naturally have an impact on the importance of migration policy in seeking the redress any deficit. It is arguable that the demographic deficit will increase migratory pressures, as labour shortages will push wages up and bring unemployment down-a tight labour market attracts migrants. Without them, labour market shortages could lead to reduction in growth and inflationary pressures. These aspects need to be considered seriously.

The economic context

2.7 The Commission points to good macro economic prospects for the EU and cites a number of benefits to the economy such as the introduction of Euro and the completion of the internal market, as leading to improved growth and job creation with the consequent drop in unemployment. These, the Commission, states, provide an ideal environment within which to look at the benefits of increased immigration.

2.8 The Commission, however, does not address issues such as possible downturn in the EU economy or particular in view of the projections for the slowdown in the US economy. The timing of the Communication, at a time which may mark the start of the slow down in the EU economy, reinforces the view made in this submission that Community institutions and the Member States may be too slow to react quickly enough to significant and rapid changes in the labour market. Any Community policy must be able to react rapidly to changes in the labour market.

2.9 As an example, the significant downturn and investment in the high technology and e-commence sectors, where rapid growth and skills shortages have been used by the Commission as an example of the need for immigration throughout the communication, has taken place just as these shortages have finally been acknowledged by the Member States and by the Commission in its Communication.

2.10 These fluctuations in the economy and the often changing needs for migrant labour highlight the differences between the competing interest groups; the interests of the Member States has historically, been driven by the wish to have migrant labour for the shortest possible time (for example the Gastarbeiter approach taken in Germany when no commitment is given to the security of residence of individuals). From the business perspective, there is clearly no benefit in businesses having a continuing obligation to employ migrant labour in the event of an economic downswing. From the individual’s perspective, their priorities are clearly security of employment and residence which will effectively compensate for their commitment to a specific labour market. There is a risk that if no such security is provided, then migrants will be reluctant to take up employment and residence in a particular Member State. Such a reaction has been evident in the poor response to the German government’s recent attempts to recruit IT personnel from the Indian subcontinent, where no such security was offered.

A new economic migration?

2.11 The Commission recognises that “there is a growing recognition that the “zero immigration policies of the past 30 years are no longer appropriate.”

2.12 It should be understood that the concept of “zero” immigration, brought in the following the economic crisis from 1973 onward, has largely been a fiction, maintained for political ends by Member States throughout the 1980s and 90s. In reality, substantial economic migration has taken place during this period as a result of both the liberalisation of trade and the globalisation of the economy. All Member States have, to some extent, admitted economic migrants for the purposes of employment, business and investment during this period. The development of international business across frontiers has continued hand in hand with the transfer of personnel within international companies. Strict labour market testing has sought to protect local labour markets but the reality has always been that migrants have always possessed skills and experience, often sectorily based, which could not be found in Member States.

2.13 The hypocrisy of the “zero” immigration policies of the last 25 years has been that they have effectively sanctioned the continued economic migration of those from developed, “white” European countries. Often this economic immigration has been sanctioned by Member States on an entirely discretionary basis, where the grant of work permits has been an exception or derogation from the general rule that there should be no economic migration.

What type of economic migration ?

2.14 The Commission’s Communication reflects the arguments for on increased economic migration, which have been driven largely by the “acceptable” face of migration – that of highly skilled and highly educated migrants, required by the economies of the Member States in its most buoyant sectors, such as IT and high technology. There is no doubt that the demand for specialised skills in the EU labour market cannot currently be met by the existing workforce. This is particularly so in the IT sector where numerous high profile schemes and changes in existing rules took effect in the second half of 2000 in some Member States.

2.15 The Commission’s paper makes it clear that migration for the highly skilled is necessary for the continued economic growth of the EU. From UK’s perspective, skill shortages continue to be a problem. Recently, 50% of UK businesses stated that they had had difficulty in recruiting for skilled jobs [2]

2.16 The Commission’s assessment of the need for low skilled labour, on the other hand, is unsatisfactory. While the Commission does recognise a certain need for low skilled labour, its concerns focus on the possible social difficulties of encouraging such labour migration to the EU. The question of low skilled immigration is looked at in the context of a number of problem areas and weakness identified in the EU economy, notably the high unemployment figures. While thankfully dispelling myths that immigration contributes to unemployment, the Communication identifies the economic benefits of migration as being more positive in respect of highly qualified migrants, as the “low qualified” may be competing with national workers for jobs

2.17 The Commission’s sees this direct competition between low skilled migrants and national workers, with migrants undercutting local wage rates, as being susceptible to lead to some social unrest. However, it is extremely clear historically, that low skilled migrants workers have filled jobs which national workers do not wish to do. This is even more true at a time of economic prosperity, where the shortage in these areas becomes more acute as the labour force becomes more prosperous and better educated. [3] Failure to fill these posts with legally resident labour naturally leads to the use of illegal migrant labour outside the formal economy, often undercutting local workforces and in cases, national minimum wage requirements. The problems of lack of employment and social protection for these illegal migrants is far greater than any perceived social tensions which the Commission believes may exist.

2.18 The demand for low skilled immigration clearly exists and must be managed in a way so as to bring these migrants within the legal framework of migration and social protection. In ILPA’s view, the Commission and the Member States need to take a realistic and un-hypocritical view as to the need for low skilled labour and should seek to influence the public debate on the need for migration in this context.

2.19 It is clearly accepted within the Commission Paper that labour shortages which exist in a number of fields (agriculture, construction, domestic services) are often met by illegal labour. The demand for that illegal labour may add to the trafficking of human beings and as stated above to migrant workers being exploited and unprotected. The problems of undocumented migrants is recognised in the Commission Paper. The Commission observes that these problems have led to several Member States resorting to regularisation and amnesty measures. What the Commission does not point out is that these regularisations and amnesties remain “political footballs” often leading to the polarisation of public opinion for and against immigration.

2.20 A more rational immigration policy which aims to channel potential illegal migration into legal channels to satisfy clear labour market demands would go a long way in eliminating both misery of undocumented migrants and the politicisation of the immigration debate.

2.21 From the Member States’ point of view, the demands for labour at both the top and bottom end of the labour market must be addressed. The public debate about illegal immigration is the result of inadequate arrangements at the bottom of the labour market.

2.22 For businesses, their interest is to be able to take on workers who are able to work legally with maximum flexibility. Their needs are met on the whole. There is an acute problem of businesses within the ethnic minority communities, which are often perceived as employers of illegal migrants (for example Chinese restaurants) because the nature of their business involves the employment of low skilled.

2.23 For the individual, the right to security of residence remains paramount, whether at the top or bottom ends of the labour market. The EU must avoid treating migrants as a disposable when no longer economically useful.

2.24 One of the principal challenges facing member states of the EU is to provide a flexible immigration policy which reflects the recent structural trends in the labour market. The increase incidence of atypical working part-time flexible and occasional work-as well as move from the individual as employee to business person, has been more and more evident, particularly in the last decade. The EU as a whole needs to ensure that it is able to attract not only skilled individuals but investment. This can only be done by recognising the way in which individuals and companies who succeed in a competitive environment operate. Member States may need to apply the “Bill Gates test”: would the immigration laws of the EU Member States have permitted individuals such Bill Gates to migrate to their country, before their raise to extraordinary wealth? If immigration policies are to be successful, they must encompass all types of migrants who benefit to the EU economy. The Commission must look carefully at encouraging and developing flexibility within its own policies.

2.25 Whilst mentioned in passing in the Commission’s Paper, the increased liberalisation of trade in services is a major issue which needs to be addressed seriously by the Member States. The provision of cross border services and temporary migratory movements have become more and more common. A successful migration policy must recognise this and must provide a place for such short term migration to take place. ILPA strongly recommends that the Commission encourage the Member States to apply the provisions of the GATS in this respect.

2.26 The question of work seekers also needs to be addressed. A Community policy, if it is to attract the best, should enable individuals fulfilling certain basic criteria (academic, vocational, experience) to migrate for the purposes of seeking work within a specified time. The criteria in question may be driven by both the need for labour in particular sectors and demographic considerations.

The positive aspects of immigration

2.27 Little is said in the Communication about the positive aspects of immigration. While there has, unsurprisingly, been little research in this area, recent research [4] has indicated, although tentatively, that migration may contribute to economic growth and to growth per capita. It has further been suggested that, when markets are functioning well, migration improves economic welfare, both for the migrant and for the native population. Migrants have higher than average incomes, although there is a wide disparity between the top and bottom of the labour market, where migrants are prominent. There is also little evidence that native workers are harmed by migration and the fiscal impact of migration is generally thought to be positive. Perhaps more research could be carried out in this area.

3. Assessing appropriate immigration levels-who decides?

3.1 While stating that the intention is not to set “detailed” European targets, the Commission places the responsibility for deciding on the needs for different categories of migrant labour firmly on the Member States.While accepting that quotas may be impractical, the Commission turns instead to establishing an appropriate system of “indicative targets”. It is likely, however, that the indicative targets established under the European immigration policy would effectively be treated as quotas and that migration over and above those would (politically) be extremely difficult, to the detriment of the EU economy.

3.2 To some extent, it is difficult to see the benefit of the synthesising of information on the admission of migrants and in laying down principles of the “common approach” to be implemented within the EU. Will this genuinely assist EU businesses in meeting their own economic needs in a fast moving and highly competitive market? As has been seen in the recent past, translating grass roots business need for migrant workers, particularly the highly skilled, into positive action by Member States (to allow for the admission of those workers), is often a lengthy and frustrating process for the businesses and sectors concerned. For this process to be further lengthened by the Community’s proposing a common approach will not assist EU businesses. In the UK’s case, for example, the severe shortage in a number of IT skills and labour was not officially recognised by the Overseas Labour Service until approximately 24 to 18 months before it became extremely acute.

3.3 The assessment of appropriate immigration levels is clearly left in the hands of the Member States, who will remain the main determiner of how many migrants are admitted in practice. However, the nature of labour migration is no longer one where the state is the primary determiner of the need for labour. The EU economy has moved from one where the state was the main employer of labour (and thus having competence to recruit labour itself) to one where many of the fields within state control in the 1950s, 60s and 70s has moved into the private sector which is now principally determining the need for migrant workers. Although, particularly in the area of health, the state retains an important remit in assessing the need for migrant labour, it is the market which takes the lead. The deregulation of the EU economy, an event brought about in no small part by the exercise of the Community’s powers, has defined the role of the government as framing the economic environment within which businesses flourish, not as one which the State should be directly involved in the economic decisions of those businesses. It is to some extent inconsistent to approach future EU migration from a perspective which involves not only a major involvement by the Member States but also by the Community in the decisions of those businesses which require migrants for their own success.

3.4 In addition to assessing the level of migration, it is also important to recognise that business often need migrants quickly. The proposals in the Commission’s paper on the application of assessment procedures, involving cooperation of governments, international bodies, NGOs, regional local authorities would make the process extremely cumbersome and damage the flexibility of EU businesses to recruit from overseas.

3.5 Finally, the “economic needs test” set out by the Commission needs to address the realities of how businesses operate. The EURES network could provide a framework for this test to operate. However, most high skilled posts are not advertised by the employment services of Member States but through other means (newspapers, specialised publications, recruitment consultants, the Internet). In many cases, the economic needs test should not be applied where there are recognised labour shortages in specific sectors and in cases where employment of migrant workers involve extremely highly experienced or skilled individuals and/or accompanying investments into the EU economy. The Commission must encourage more flexibility.

4. The Framework for a Community Policy on Economic Migration

4.1 What model should the EU adopt for migration? ILPA has consistently advocated a ‘rights-based’ approach to migration issues, most recently in its detailed proposals for Community migration policy prepared jointly with the Migration Policy Group. [5] A ‘rights-based’ approach does not mean that we are advocating that there is a human right to migrate for any purpose whatsoever, or even a human right to migrate for economic purposes, although of course human rights law has a substantial impact on migration law. Rather this approach means that migration law as regards any form of migration should be set out in legally binding rules that can be interpreted and enforced by courts and tribunals which can consider the merits of the authorities’ decisions applying those rules. This is the approach applied by Community law as regards entry of third-country goods and capital, and to a large extent services and establishment. [6] The binding rules need not be as liberal as the rules governing movement of EC nationals, just as the rules governing entry into the Community of third-country goods, services and capital are not as liberal as the rules governing movement within the Community.

What migration policy for the Community?

4.2 In ILPA’s view, Community policy on migration, which should take the form of legally binding Directives or Regulations, should specify that applications for admission can be considered not just when an applicant lives in a third country, but also when an applicant is legally present for a short-term period. Applications by legally present persons should be permitted because there seems little purpose to requiring migrants to go to the expense of returning to a third country when they are already present and ready to take up employment in the Community. Furthermore, in the interests of legal certainty, EC legislation should set time limits for Member States’ authorities to take a decision on such requests. Persons who are already legally present should be allowed to remain temporarily while the application is being considered. EC legislation should also state expressly that the relevant documents concerning entry and transit should be issued once the authorities recognise that the conditions to take up employment have been fulfilled.

4.3 We welcome the Commission’s suggestion, also made in The Amsterdam Proposals, that would-be economic migrants should be granted admission to the Community for up to six months in order to search for possible legal economic opportunities within the Community. This will expedite contact between would-be employees and employers, although it would not preclude a Member State’s authority from finding that the conditions to exercise the right to take up employment in a Member State have not been met in a particular case.

4.4 Again in the interests of legal certainty, EC migration legislation should set out the circumstances in which Member States can require economic migrants to leave by any means (ie, refusal to renew a permit or to withdraw or revoke that permit) during their authorised period of employment or refuse to allow those migrants to enter the country again during this period, where the migrant has spent time outside the Member States. It should also set out the procedures regarding renewal or extension of a residence permit.

4.5 An initial work permit should normally be for a relatively lengthy period, for example four years, although it would be counter-productive to assume that all workers will leave after four years. The separate EC rules which should be adopted on the status of long-term resident (see below) should contain rules on the transition from shorter-term work permits to a definitive long-term residence status.

4.6 As for the core issue of what criteria should be used to determine whether a person should be admitted into a Member State for paid employment, we welcome the Commission’s willingness to consider the prospect of allowing entry for persons who can fill a job vacancy that has been listed for a certain period in the EURES database. For most employment, that would in our view be a suitable condition for allowing entry of an economic migrant, for it would be closely related to the actual labour market needs of EC employers and the capacity of available EC labour to fill it.

4.7 As regards self-employed persons, the Commission’s paper could have done more to address this issue. In ILPA’s view, future Community measures on this subject should update the current Resolution on this subject, by providing in particular that it should be possible for employees to switch to self-employment (and vice versa) and by providing that self-employed third-country nationals should be allowed to adapt to changes in the business environment by becoming involved in activities besides those which they took up upon initial entry.

5. Integration

5.1 The Commission’s Communication does not squarely address the issue of integration of migrants into host countries.[7] As noted above, integration policies undoubtedly play a role in influencing migrants’ decisions to choose a particular Member State. Many persons will be unwilling to engage in the trouble and expense of uprooting themselves if they cannot bring their families with them at all, or not for an extended period, and if there is no prospect of secure residence status in the state they are considering moving to. The Communication should therefore have addressed the link between integration and initial admission.

5.2 Furthermore, the Communication should have laid out the basic elements of a Community integration policy, aimed at ensuring comparable treatment of migrants and EC nationals and equal treatment as far as possible of EC nationals and long-term resident third country nationals (following the Tampere conclusions on this point). The Community should move to adopt legislation governing this issue, which is particularly suited to a ‘rights-based’ approach to migration law given the protection that Article 8 ECHR and the recent Council of Europe Recommendation on Long-term Migrants affords to long-term residents.

5.3 As ILPA and MPG have suggested in The Amsterdam Proposals, Community legislation on long-term residents needs to guarantee equality between long-term resident third-country nationals and EU citizens who move to another Member State, by reference to the existing Community measures on free movement of EU citizens. It should also set out rules not only governing education in Community languages (for migrants) but also governing education of the host population in the cultural diversity of the Community population. The concept of ‘long-term’ migrant needs to be clearly defined (we have suggested a three-year waiting period for economic migrants and a five-year waiting period for others) and the transition to full access to the workforce, entailing phased extension of the right to work for other employers and in other sectors of the economy, needs to be set out in the EC legislation. Finally, the legislation needs to set out rules governing the right of long-term residents to move and reside in other Member States.

6. Partnership with countries of origin

6.1 The Commission proposes a number of measures which engage the interests of countries of origin of migrants. One of the difficulties of this section of the Communication is that it is bedevilled by the implicit but never clearly expressed division which the Communication accepts between migrants who are desirable and those who are not. One of the difficulties of this division is that it is particularly hard to draw. On the one hand, high skilled immigration is generally considered a benefit. On the other hand, unskilled immigration is also much needed in many Member States - examples of programmes for unskilled migration include the Spanish and Italian quota schemes, the Irish work permit scheme and others. Thus the definition of who are the unwanted immigrants whose return to their countries of origin should be encouraged and the subject of discussion with countries of origin becomes more complex.

6.2 The concept of partnership with countries of origin, as outlined by the Communication, is premised on the idea of partnership countries outside Europe implementing EU immigration law on behalf of the EU. This presupposes that countries will place limitations on their own nationals leaving their countries of origin if there appears to be a likelihood that the individual will breach the immigration laws of the EU state to which they intend to travel. This concept is problematic on grounds of principle and practice. In principle it must be questionable whether it is appropriate to place expectations on third countries that they will examine the intentions of their nationals on leaving their home state.The right of individuals to leave their country, without providing reasons, finds voice in Article 13 of the Universal Declaration of Human Rights 1948 and many human rights instruments thereafter. The European Convention on Human Rights includes such a right in Article 2(2) of Protocol 4 (though of course the UK has not ratified that Protocol). Thus the right of choice of the individual to leave his or her own state is intended, in international law, to be protected from interference by the state of nationality. The exceptions are primarily on the grounds of the prevention of crime. While this may be relevant to the movement of a small number of persons who are engaging in criminal activities, it certainly does not cover most persons who seek to travel.

6.3 In practice it is rather difficult to see how a country of origin can prevent its nationals from travelling on the grounds that when they arrive in the country of destination, which could be in Europe, they might overstay their visas or work when they do not have permission to do so. The immigration laws of each of the Member States of the Union are sufficiently complicated and different from one another that it is hard to determine whether a person travelling from one Member State to another is going to be allowed to enter. It is a quite impossible task for a third country outside the Union to have the knowledge of the systems of EU states and their legal requirements to apply EU immigration laws on behalf of the EU in respect of their own nationals.

Brain drain-a valid concept?

6.4 In respect of immigrants whom the EU does seek to attract the Commission raises the question of compensation to countries of origin for the "brain drain" effect. This is a rather ambiguous concept. While we are very much in support of reasons for increasing aid and development assistance to third countries which are poor we are less certain that "brain drain" is a consistent concept. There are certainly well documented examples of the unfortunate effects of movement of persons from rural areas to cities, and often to cities abroad, but these movements are primarily of unskilled workers, and thus do not qualify as "brain drain". If one takes the example of the EU, differential rates of pay and possibilities among the Member States for qualified workers when taken together with the right of free movement for EU nationals means that the EU should be subject to very substantial brain drain. This does not appear to be the case. Of course the use of structural and other funds has made available capital investment in many parts of the Union with lower than average GDP. However, unemployment rates remain very different in neighbouring Member States without the effects of brain drain manifesting. We suggest that the knowledge which we have about movement of persons from the experience of the EU should be taken into account before conjecture about movement of persons elsewhere in the world is posited.

6.5 Finally, in this section a few comments need to be made about the Commission's proposal to encourage immigrants to invest in their countries of origin. First, all persons who migrate for employment should have the opportunity to integrate in their host state. We are concerned that phrases such as "a pattern of mobility which encourages migrants to maintain and develop their links with their countries of origin" in fact is about preventing migrants from gaining secure residence statuses in their host countries and limiting their work and residence permits to short periods. Secondly, the idea that migrants should be encouraged to invest in development projects and business ventures in their countries of origin, if it is to take place, must do so in a framework of secure residence statuses, a commitment to the integration of immigrants into the host state and the completely voluntary nature of the connection. Some immigrants keep in close contact with their countries of origin and some do not. Those who do, not infrequently suffer allegations that their links with their home countries are evidence of their lack of commitment to their host state. Indeed, as has been seen in at least one decision of the European Court of Human Rights, even immigrants who naturalise in their host country can be held to lose rights of family life because they have maintained too close links with their country of origin (see Ahmut v Netherlands 1998). EU policy and law in this field should avoid incoherence and contradiction. The Community law principle of respecting as far as possible the choice of the individual whether to move or not for economic reasons should remain the foundation of the Community's extension of immigration law towards third countries. Exceptions to the individual's right of choice should be spelt out clearly and justified. Such an approach is likely to be more beneficial to the Union in the long term.

7. Management of Migration Flows

7.1 The Commission refers to the Conclusions of the Tampere European Council, which advocated the need to adopt a comprehensive approach to the management of migration flows. Four themes can be identified in this section: cooperation between reception countries, transit countries and countries of origin; development of a common visa policy; control of illegal immigration and trafficking; and return, including both voluntary and forced return and readmission agreements.

Cooperation between countries of reception, transit and origin

7.2 Cooperation between countries involved in the migration process can only regulate migration properly if prudent and well-planned action is undertaken to address the root causes of migration. At no point should cooperation with repressive governments be undertaken to stem migration thus undermining the right to seek asylum or to close borders forcing potential migrants to stay at home. Moreover, the Commission’s paper fails to take account of the criticisms that have been aimed at the Action Plans produced by the High Level Working Group on Asylum and Migration (discussed in Section 2.1 of the Commission's paper), particularly by the European Parliament, which has questioned inter alia the undue emphasis on security and prevention measures and the lack of consultation undertaken in drawing up these documents, both with the target countries and the European Parliament, as well as the absence of any concrete financial commitments to their implementation.[8]

Visa policy

7.3 The Commission is concerned “to safeguard legal channels … for those who seek protection on humanitarian grounds” and yet in its proposal on establishing positive and negative visa lists it is essentially endorsing the previous Schengen negative visa list save for a few minor amendments, [9] which means that it is going to be even more difficult for certain groups of third country nationals to enter the European Union. Consequently, those seeking asylum or other forms of humanitarian protection are likely to turn increasingly to illicit means to enter the EU. There is an obvious and inherent contradiction in such an approach.

Control of illegal immigration and trafficking

7.4 The Commission identifies a coherent and co-ordinated approach to illegal immigration as an essential part of a more open immigration policy at EU level. To date, the approach to illegal immigration has been anything but coherent and co-ordinated. In ILPA’s submission to the House of Lords on the French Presidency Proposals, which were all aimed at controlling illegal immigration, ILPA expressed considerable concern at the content of these proposed measures. In particular, the two proposals on facilitating illegal immigration made no attempt to distinguish with any coherence the concepts of trafficking in human beings and smuggling of migrants, which has been undertaken in the recently adopted Protocols to the Convention against Transnational Organised Crime. ILPA's reading of these proposals is that they would apply to both kinds of movements. The Commission has since published a proposal for a Council Framework Decision on combating trafficking in human beings where it has taken the view that its proposal is complementary to the French Presidency proposals in this area in that the latter are concerned with the smuggling of migrants and not trafficking. [10] This does not conform to ILPA's reading of the French Presidency proposals, which are clearly broader in scope.

7.5 The reference to help for victims of trafficking is to be welcomed, although any solutions proposed should not merely encompass their “humane repatriation”, but should also consider permitting trafficking victims to stay in the destination country particularly in those cases where it would be unsafe for them to return home because of intimidation from traffickers directed at them or their families. The recent Commission proposed Framework Decision is silent on this specific question, merely imposing an obligation on Member States to ensure that adequate legal protection and standing in judicial proceedings is given to the victim and that criminal investigations and judicial proceedings do not cause any additional damage for a victim.[11]

Return

7.6 Return is undoubtedly an important part of a comprehensive approach to the process of migration management, but policies concerning return can only be successful if they are developed in accordance with a coherent and equitable admissions policy. It is such an approach that should be prioritised before considering other questions relating to return such as voluntary return or readmission agreements. A coherent and equitable admissions policy, if implemented properly, is likely to result in the reduction of illegal immigration and thus preclude the need for substantial returns. With regard to specific return policies, voluntary return is clearly the most humanitarian and cost-effective option and can be supported, but only in the context outlined above. A focus on voluntary return should also be accompanied by a presumption against the detention of illegal migrants.

Notes

[1] For example, see Home Office figures in RDS Occasional paper no 67 and Government Actuary’s Department figures

[2] Lloyds TSB Business in Britain Survey, January 20001

[3] See for example, Migration:anneconomic and social analysis, RDS Occasional paper no 67

[4] Migration:an economic and social analysis, RDS occasional paper no 67

[5] The Amsterdam Proposals, ILPA/MPG (2000).

[6] The application of binding Community rules to service provision and establishment from third countries will increase following amendments to the scope of the common commercial policy agreed as part of the Treaty of Nice. In any event, even though aspects of these issues currently fall within Member State competence, Member States still have binding public international law obligations on these issues.

[7] By ‘integration’ we refer to policies addressing security of residence and legal equality for migrants, not policies aimed at the ‘assimilation’ of migrants to the host state’s culture.

[8] Resolution of 30 March 2000 on asylum-seekers and migrants – action plans for countries of origin or transit, OJ C 2000, C378/75.

[9] COM(2000) 27 as amended by COM(2000) 577.

[10] COM(2000) 854, Explanatory Memorandum, p.8.

[11] See Article 8 of the draft Framework Decision.