by Harald Greib
After the influx of survivors of civil wars in the Balkans into Europe, the wrecks full of Africans stranded on the beaches of Andalusia, the attacks on the border barriers of Spanish enclaves in Morocco, it is today the riots in the French suburbs that have put the headlines on immigration and immigrants. Under the pretext that borders are open in Europe (to read the Member States no longer control the presence of people on their territories), many comments require the definition and application of a common European immigration policy. “Since the Schengen agreements create an area of free movement for everyone inside, it is necessary to define who can enter the area for the whole area, i.e. at European level.” However, this observation is extremely false. Consequently, so is the conclusion drawn.
The Schengen agreements and the abolition of systematic checks on persons at the Union’s internal borders in no way prevent a Member State from monitoring its borders and returning foreign nationals to the neighbouring Member State without a right of residence wishing to cross its border. Schengen allows the free movement of persons in all Member States acceding to the Schengen agreements only for very specific categories of persons: those who have entered or are legally residing in a Contracting State and remain only for a short stay (three months). As a result, a non-European foreigner without a right of residence in one of the States acceding to the Schengen agreements or apprehended while working may be repatriated to their country of origin. Not all “illegal”, all “undocumented”, all failed asylum seekers benefit from the Schengen agreements. In particular, Schengen does not apply to all foreigners who wish to come to Europe to live and work. A long-term right of residence is granted by each Member State individually, without consultation with the other Member States, but also without creating obligations for them (with the exception of a maximum of three months’ reception per semester pursuant to the Schengen agreements). All the poor and miserable people we go on TV in the evening to a makeshift camp somewhere in Morocco: for them, the only thing Schengen changes is that their wandering space is potentially bigger, if they can get into Spanish territory. If we want to argue the need for common rules for immigration to Europe, we must find other reasons than the partial freedom of movement granted by the Schengen agreements. We will develop here a list of such potential reasons, which, given the complexity of the subject, will not be exhaustive.
For the transfer of competence at European level to be in line with the European Treaties, the principle of subsidiarity requires that the objectives of a policy cannot be sufficiently achieved by the Member States. In a few words: Europe is doing better than the Member States. Let us take advantage of this reminder of a principle existing in current European legislative texts, unfortunately so flouted, to highlight the Leitmotiv of the Newropeans – the democratisation of the institutions of the European Union: the further away from the citizens a competence is exercised, the more difficult it is to carry out a genuine democratic debate and control. Therefore, the democratisation objective necessarily involves a strict application of the principle of subsidiarity (which is a manifestation of democracy), not only in a “Member State – EU” relationship, but also in a “Member State – region, even municipalities” relationship. The debate on the European Constitution and the reaction of our political class to the riots in the suburbs have put in the spotlight the consequence of a political system where power is exercised far from the citizens: a huge gap between public opinion and the political class, and a denial of reality on the part of our leaders. Let us therefore see what the application of this principle of subsidiarity (Why should Europe do better?) gives in relation to an immigration policy: The field of immigration is not a monolithic bloc. It is subdivided into many facets.
– border controls
– the conditions and criteria for a stay, long or short term
– integration measures
– the fight against illegal immigration, which is itself subdivided into police, trade, foreign and development policy measures
– the conclusion of readmission treaties with third countries.
The answer to the question whether Europe is doing better can only be provided faceted by facet. For border controls, the answer to the question is comparatively obvious. As systematic controls at internal borders have been abolished, these controls must be carried out at external borders, in accordance with procedures defined by all States within these borders. This ensures that a Member State carries out controls on behalf and in the name of all. Indeed, there is no alternative to this European competence. But the discussion on European competences regarding border controls is evolving. There are some (Member States, politicians and editorialists) who demand, in the name of this common responsibility, that these controls be entrusted to a European body, a European border police force. There are many reasons for this: financial considerations (controls are very expensive for the Member States concerned), recycling of national border guards that have become superfluous in a European administration, and the display of a pro-European policy (see centralist), still considered in some circles as modern and progressive. However, this seems to me to be completely incompatible with the principle of subsidiarity. It may be sufficient to draw the reader’s attention to the fact that even in a federal state such as Germany, some federated states carry out border controls at German borders on behalf and in the name of the federal state. And it has never been criticised as an ineffective organisation or as one that undermines German security. Such a division of tasks between the legislating entity and the enforcing entity is then possible, so a transfer of this competence to a European administration is not necessary. Above all, there is an additional aspect that prohibits it in the current state of the EU. The EU is democratically illegitimate and almost uncontrolled. A European border police would be a heavily armed paramilitary body. Do we really want to create a Praetorian guard in Europe, which the European institutions could use to impose their will on peoples who are recalcitrant to the sacred European integration? For example, to a Luxembourg that is ready to withdraw from the EU? (a perfectly theoretical example) The contempt shown by European leaders for the will of the people in the French and Dutch referenda should make us cautious. However, the democratic deficit is not the only reason that should lead us to reject such a future project. Even after a re-foundation of the European Union into a truly democratic system to which Newropeans aspire, the creation of such a European administration would remain undesirable. Can you imagine a German, who entered this administration by competition, controlling the Italian Riviera while his Italian colleague controls the Romanian-Ukrainian border? Which gas plant for rotation of assignment, expatriation bonus etc. Let us not even mention the inconvenience that, when you go home, the border guard who controls you may not even speak your language. In any case, apart from this consideration, the creation of such a body would remain a hindrance to the principle of subsidiarity and would create a more distant competence of the citizen than necessary. Therefore, as a last resort, it would be an obstacle to the proper functioning of democracy.
The subject of residence conditions and criteria is more complex. For short stays (three months), the States acceding to the Schengen agreements have decided to harmonise their conditions and criteria. A three-month right of residence granted by one State applies to all. This harmonisation was not really necessary from the point of view of abolishing internal border controls. States could have simply granted every foreigner who wants to travel to a Schengen State in accordance with the legislation of that State a right of transit. However, compliance with this provision would have been impossible to verify. If we wanted to avoid imposing rules that were completely uncontrollable, we had to better harmonize the whole system.
For long-term stays, the Treaty of Nice requires Member States to harmonise immigration conditions and criteria. Despite the opinion of Commissioner Vitorino of the Commission Prodi that the definition of a common immigration policy would not be appropriate in view of the diversity of situations in the Member States, the Convention for the Constitution, on which he sat for the Commission, fully incorporated these provisions. However, as long as a long-term right of residence does not confer a long-term right of residence in all Member States, such a common policy is not necessary. Its inclusion in the Treaty of Nice and in the draft Constitution’ was therefore contrary to the principle of subsidiarity and thus to democratic principles in a broad sense. And to echo the opinion of the Commissioner who has not made his voice heard in the Convention, each State has other needs. Spain is looking for agricultural workers, Germany for computer scientists, Sweden for doctors, Italy for a replacement for Berlusconi while avoiding Prodi….. How can we make a common policy that benefits everyone, even though they are so different, unless we want to subdivide it into national modules within this policy – we might as well stay with a national policy right now. As long as there is no free movement of non-EU nationals, the fact that, for example, Spain regularises hundreds of thousands of irregular migrants or that Germany sets up a “Green Card” system only concerns these countries. They can do so without consulting European partners. (It would be something else if they wanted to naturalize foreigners. This would give them the right to settle anywhere in Europe. In this case, it would indeed be necessary to provide for a system of consultation or simply to harmonise nationality law – a vast programme; as long as the figures are not important, the EU has, until now, avoided starting this debate). With a national immigration policy, each government remains accountable to its citizens for the number of immigrants it receives and the possible difficulties it creates. It is each State that defines its demographic and labour needs and assesses its integration capacities. If a government believes that its tolerant population accepts a significant number of immigrants, it should take responsibility for the genesis of ethnic ghettos… It is not for European officials in the upscale districts of Uccle and Waterloo to make such decisions in order to be well considered by certain sectors of civil society that serve as the Commission’s sounding board for European good speech. (All right, it is the Council that decides, but in view of the multiple pressures that the Commission can exert on the representatives of the Member States, in view of its procedural privileges which it exploits with brio, the Council’s decisions are strongly manipulated by the Brussels system). If a national government wants to bring in cheap labour to please its employers, let it justify itself at the polls; let us not give it the excuse of a policy imposed by Brussels. After the democratisation of the European institutions, the argument that European decision-makers are irresponsible for a possible common policy in front of the citizens would no longer be relevant. But the subsidiarity argument remains entirely valid. If the need for immigration and integration capacity are assessed and realised at local, regional and national level, there is no need to separate the impact area of a policy from the decision-making area. If we ever decide to grant the free movement of workers also to nationals of non-European countries, we would indeed have to establish a common policy to decide who can come and live and work in Europe. This would be compatible with the principle of subsidiarity. But the problem of the democratic deficit would persist. It would be institutions with little democratic legitimacy that would define demographic change in Europe. Who would have to assess and take into account the integration capacities of our societies. And who would not have to take responsibility in the event of failure. Even after a re-foundation of the European institutions, there would still be a problem. Should the better functioning of the single market be given priority over national flexibility in defining its immigration policy? The needs of the different Member States will always be different. It is a difficult political question that must not be decided today or in this place.
Let’s go back to the less complex themes:
Integration measures. It is telling that, during the riots in France, no one asked for European action, not even financial. The French are well aware that this is a purely national problem. However, the Treaty of Nice contains a provision according to which the EU to support and support national integration measures. Europe is really involved in everything. But integration is indeed the most non-European of all themes. Immigrants are actors in the fields of housing (local), labour (local and regional), education and training (local and regional respectively national depending on the Member States) and social security (national). There is no need for Europe to have a say.
Readmission treaties with third countries Sarkozy wants to expel foreigners convicted of crimes committed during the riots. Advertising policy in many cases. Because often the State wishing to expel an appointed person is unable to establish the nationality of that person. If the presumed state of origin refuses to cooperate in establishing nationality or categorically refuses to readmit its national to its territory, any voluntarism comes up against reality. Hence the need to conclude readmission treaties with states in which many nationals reside in the territory of the Member States, in which the obligations of the State of origin are well defined. These treaties are generally the result of long negotiations and a game of power. It is therefore preferable for the EU, on behalf of and in the name of the Member States, to negotiate these treaties. The EU has a different arsenal of pressure and seduction than individual Member States. The aim here is to bring into play the EU’s largest size and economic power. The implementation of readmission procedures naturally remains the responsibility of the Member States.
After these few less complex remarks which, I hope, allowed you to take a breath, the last theme:
The fight against illegal immigration.
This theme is divided into two main categories:
The fight through police action, including the fight against human traffickers and smugglers. For this strand, the same considerations apply as for police cooperation in general. It may seem appropriate to create an operational European police force in the style of the American FBI or German BKA, i.e. a police force that operates directly on the ground, sometimes in competition with the state or local police. A European police force should form national police forces using a European platform for cooperation, without this platform attempting to become the top of a police hierarchy; a platform on which the police forces concerned work together, choosing one national pilot per case who coordinates the work of all the others. No other form of organisation could meet the challenges of European diversity and complexity. Such an administration already exists: Europol, on its existing legal basis. It should simply be cured of its tendency to want to become the elite body of the European police force. A platform must, by definition, remain modest. It is only a tool and not a master (it is conceivable that such a mentality is not that of European civil servants to whom by means of salary (double or triple the national level), by indoctrination (“you are the best, Europe is only created thanks to you”), by their status of professional immunity for life is inculcated a feeling of a superior class).
Secondly, the fight against the causes of illegal immigration, i.e. poverty, human rights violations, huge material inequalities and, of growing importance, the deterioration of the environment that deprives entire populations of their homes. It is European trade, foreign and development policy and within the major international institutions, in particular the UN, the IMF, the WTO and the World Bank, that must serve its objectives. It is clear that the EU of its size and power can play a different role and put forward its views than individual Member States. However, it is unthinkable that the current institutions can really define and coordinate a coherent policy that oversees the different interests of the Member States. This lack of power can be seen: It is not coherent or effective to develop an agricultural sector in a given region if this agriculture is affected by EU-subsidised imports. An attempt at pacification in a region in which a company of a Member State supplies arms is not successful. It is not surprising that strong migratory pressure is developing in a region where natural resources are polluted by a European oil company. To impose a coherent policy, European citizens must equip themselves with institutions in which a real political force can develop, institutions that derive their legitimacy from a direct election by citizens and which, by the force of this legitimacy, can oppose purely national interests. As it stands, such a position by the European institutions could be discredited – and rightly so – as technocratic interference in a policy endorsed by a democratically legitimated government. This is the biggest project for a future European immigration policy. It can only be achieved by a democratic re-foundation of the European Union. And this and the loop of Newropeans’ political action is closing: new institutions for a new (immigration) policy.