Director-General for International Affairs and Immigration,
Ministry of Justice, The Netherlands
Key outcomes of the Dutch EU Presidency in the field of immigration and asylum
Ü Eurasylum Ltd: One of the key outputs of the Dutch Presidency of the European Union in June-December 2004 has been the adoption of a new multi-annual programme, referred to as the Hague Programme, on the Strengthening of freedom, security and justice in the European Union”. The Hague Programme provides a new agenda for building on recent policy and legislative achievements resulting from the five-year Tampere Programme (1999-2004) in the field of migration, asylum and other key justice and home affairs policy areas. It also invites the European Commission to present an Action Plan in 2005 in which the aims and priorities of this new Programme will be translated into concrete actions and will be linked to a strict implementation timetable. Could you briefly guide us through the main relevant decisions adopted under your Presidency in the field of migration and asylum, and explain the ways in which these constitute a step forward from initiatives already foreseen in the Tampere Programme, either in terms of their innovative character or their potential to consolidate policy and legislative instruments adopted in the first half of the 2000s?
Ü Robert Visser: When the Dutch Presidency started on 1 July 2004, the legislative agenda in the field of asylum and migration was not nearly as full as it had been several months earlier. The Irish Presidency that preceded ours had been very successful in finalising legislation agreed in the Tampere Programme. It had met the deadline of 1 May 2004 in the Treaty of Amsterdam. It had also brought the negotiations on the Constitutional Treaty to a successful end. This was very important in making the Hague Programme possible and in providing it with a framework. The European Council has recognised this when, in June, it asked the incoming Dutch Presidency to draw up a programme for the strengthening of freedom, security and justice in the European Union.
In the months leading up to our Presidency, we had started to gather the ideas and wishes of all Member States regarding a multi-annual programme. Our own proposals were based on these consultations. They were discussed in several Justice and Home Affairs Councils. It thus became clear to us quite early in the process which issues were important to Member States, how far they were willing to go and which proposals might be likely or unlikely to be adopted. There was an atmosphere where all Member States were clearly aware that far-reaching cooperation was necessary if migration management was to become, effectively, a success. It was also unanimously recognised that the results obtained during the Tampere Programme had to be consolidated before the European Union could take major steps forward again.
A case in point is illegal migration in the Mediterranean. This does not only create migratory pressures on Europe’s external borders, it also leads to human tragedies that make clear to everyone that people are risking their lives to try and reach the shores of Europe. Such losses of life are unacceptable and require a policy response. They also require a willingness to accept the consequences of any such responses. For example, a European response to illegal migrants who apply for asylum requires the type of European asylum procedure and uniform asylum status that had already been anticipated in Tampere. The situation in the Mediterranean also leads to pertinent questions on EU relations with neighbouring third countries. There are many more such examples, such as the demographic situation in Europe or the situation of refugees close to their regions of origin. An integrated and comprehensive approach is needed today as much as it was at the time of the Tampere European Council in 1999. However, since Tampere we have gained considerable experience and become more aware of the primary importance of practical cooperation among Member States and with third countries.
Ü Eurasylum Ltd: Under your Presidency, the European Council has also urged the Member States to implement fully and without delay the first phase of the Tampere Programme. It has further invited the European Commission to report by the entry into force of the Constitutional Treaty (1 November 2006) on the progress made in the implementation of the Programme, and to propose the necessary revisions to take account of the changing legal basis as a consequence of the entry into force of the new Treaty. How would you assess the current state of transposition into national legislation of the key EU Directives in the field of migration and asylum adopted between 2001 and 2004 and, generally, what would you see as the most salient implications of the possible entry into force of the Constitutional Treaty for existing national asylum/migration legislation and systems, and for the formation and adoption of new EU legislation in these policy areas?
Ü Robert Visser: It is not always recognised that, by providing Member States with a framework for the development of their national legislation and for policy formation, the Directives and Regulations that have been adopted in the past four to five years have had a major impact on national policy. This is very clear where visa policy and border checks are concerned, but it will also appear to be so in areas such as asylum, family reunification, or the admission of students and researchers. As a result of harmonisation, national policy options have become more limited. I think this will really show during the transposition process, which will also reveal the gaps in existing Community legislation.
However, the transposition process is a difficult process. The implementation of Community legislation within national legislation is a new phenomenon as far as asylum and migration are concerned. Many directives are complicated, because they are the results of very intensive and difficult negotiations, which have sometimes led to legislative texts that were not always easy to interpret. In my view this is a major reason why the implementation process is going so slowly. And this is exactly why it is so important that Member States have agreed, with the Hague Programme, that their achievements should be monitored and discussed at the European level. The contact committees that the Commission is establishing to support Member States in the implementation process can be very helpful for the same reason.
What should also not be underestimated is that, as from early 2005, decision-making in the Council has been reverting, in almost all fields (except for legal migration) to qualified majority voting and to co-decision with the European Parliament. The Constitutional Treaty will extend this procedure to legal migration as well, except as regards the establishment of the volume of admission of labour immigrants. On the whole, the Constitutional Treaty gives a far broader legal base than we can make use of today, especially as regards asylum. In particular, it will be more difficult to maintain national exceptions in Community law, and harmonisation will subsequently have more impact than the first generationmeasures of minimum standards, thus laying the basis for a successful implementation of the Hague Programme.
Ü Eurasylum Ltd: In addition to designing a series of measures to facilitate completion of the Common European Asylum System, including through the proposed establishment of a European Support Office to assist all the national asylum services in the Member States, your Presidency was also instrumental in stimulating progress in the area of migration management, particularly as regards issues of increased cooperation with source countries. The European Council has invited, in particular, the Commission to develop EU-Regional Protection Programmes in partnership with the third countries concerned, incorporating a variety of relevant instruments on capacity building, and including a joint resettlement programme for Member States willing to participate in such a programme. It has also proposed the establishment of a European Return Fund by 2007, the timely conclusion of Community readmission agreements and the possible appointment of a Special Representative for a Common Readmission Policy. At the same time, while stressing that the determination of volumes of admission of labour migrants will remain a competence of the Member States, the European Council has invited the Commission to present, before the end of 2005, a policy plan on legal migration that would include admission procedures able to respond promptly to fluctuating demands on the EU labour markets. The Green Paper on an EU Approach to Managing Economic Migration, published in January 2005, offers a first element of this plan. How would you assess the policy significance of all these initiatives for securing a more balanced and realistic approach to current migration and asylum phenomena within the EU, and what would you see as the possible institutional/political constraints likely to limit the scope for a fully harmonised asylum and migration policy approach within the EU, or for securing the full cooperation of third countries in the implementation of the EU’s evolving migration management policy?
Ü Robert Visser: You mention a more balanced and realistic approach to migration and asylum issues. I think this is indeed what we have achieved. In Tampere the international obligations of the Union, such as the Geneva Convention on Refugees, were stressed, as well as the rights of third-country nationals who are legally residing in a Member State. Since then, more emphasis has been laid on the fight against illegal immigration. The terrorist attacks in New York and Madrid have caused an even greater shift towards control measures. In the Hague Programme we have tried to find a fair balance. We have not only focused on control measures, but also on the need for integration of immigrants who reside legally in the European Union. We have focused on a common European asylum system, but also on capacity management in neighbouring third countries and on the strengthening of durable solutions for refugees in their regions of origin. Cooperation with third countries is not likely to become fully effective if the focus is only on control. Responsibilities should not be shifted, but shared, and this is the spirit of the Hague Programme.
But what is true between countries, is also true within administrations. Asylum and migration policies should be developed in conjunction with other, adjacent policy areas. A comprehensive policy can only be successful if this condition is met. This will be a major challenge in the years ahead, for the Commission as well as for the Member States. In the Netherlands we have gained experience of conducting such a policy, for example by inserting readmission clauses into agreements with third countries, or by linking migration and development policies. Of course, there are institutional hurdles to be taken, but in the process leading up to the Hague Programme Member States have shown a growing awareness of the need to surmount such hurdles. Therefore I am confident that our choice to focus on practical cooperation issues as much as on legislation will prove to have been the right one.