11/2009: Juan Fernando López Aguilar


Juan Fernando López Aguilar
Chair of the Committee on Civil Liberties, Justice and
Home Affairs (LIBE Committee) of the European Parliament;
former Minister of Justice of Spain


“The Stockholm Programme and other strategic priorities of the
LIBE Committee of the European Parliament”


Ü Eurasylum: One of the most strategic on-going developments in the field of EU immigration and asylum policy is the forthcoming multi-annual work programme in the area of justice and home affairs – the so-called Stockholm Programme, which is due to be adopted at the EU Summit in December 2009. The Stockholm Programme will provide a framework for EU activities in the field of asylum, migration, visa policy, police, border and customs cooperation, rescue services, and justice issues for the period 2010–2014. Can you discuss, briefly, the LIBE Committee’s positions and recommendations regarding this new multi-annual programme?

Ü Juan Fernando López Aguilar: It is my pleasure and honour to highlight to you the main elements foreseen in the recently adopted resolution of the European Parliament (EP) on the Stockholm programme (P7_ TA-PROV(2009)0090, 25 November 2009), with a particular focus on the policies on immigration and asylum. What must be said from the outset, I think, is that this resolution sets ambitious standards in the Area of Freedom, Security and Justice (AFSJ), taking into account the new legal landscape of the Treaty of Lisbon that sends a strong political statement that should not be ignored.

Coming back to the central point of your question, and as a general remark, I would like to observe that the EP has recalled that Community integration, immigration and asylum policies must be built upon full respect of fundamental rights and the ECHR, so as to ensure effective protection of the human rights of third country nationals as well as full compliance with the principle of non-refoulement. The EP resolution also emphasised that immigration and asylum policies should address the needs of the most vulnerable groups, such as refugees and asylum seekers, and particularly minors and unaccompanied minors; it also called for the establishment of a consistent and comprehensive legal framework facilitating legal migration.

Firstly, on asylum policy the message that the EP resolution aimed to convey was that the Common European Asylum System should be further developed, establishing a common procedure which should ensure greater consistency and better quality of asylum decision-making across Member States in order to close the protection gap in Europe. For that purpose, the EP encouraged negotiations on pending and forthcoming legislative initiatives on European asylum instruments with a view to reaching improved standards and addressing gaps in the existing legal framework.

Another important element that I would like to point out, concerns the emphasis on the principle of solidarity, a principle that rightly so must remain at the centre of common immigration and asylum policies. To this end, Member States should actively engage and show their complete commitment to solidarity mechanisms such as the pilot project for internal reallocation of beneficiaries of international protection envisaged by the Commission. At the same time a transparent system of evaluation of the reception capacities of Member States, as well as the definition of the respective role of the European Asylum Support Office (EASO) in that context appear to us as necessary undertakings in this field.

Furthermore, the EP has also pointed to the need for an open debate on the different options available for the definition of a compulsory mechanism for effective solidarity, notably through internal reallocation, and has called for the prompt formalisation of the solidarity principle and for fair sharing of responsibility as provided for in Article 80 TFEU, which moreover refers to the importance of establishing greater cooperation with third countries, namely neighbouring countries. This cooperation should foster the development, in those countries, of asylum and protection systems that comply with fundamental rights and international protection norms, but that do not undermine or seek to replace access to protection in the EU. Requests have also been put to the Commission for practical proposals for effective action against the abuse of asylum procedures.

On immigration policy, we have tried to send out clear and strong messages in favour of a comprehensive, stronger and consolidated approach. It appears that a comprehensive approach to immigration needs to take into account the factors that lead people to leave their countries (“the push factors”), but also to incorporate clear plans for development and investment in the countries of origin and transit. This could be reached by facilitating money transfers to the countries of origin or putting in place trade and agricultural policies that enhance new opportunities and that promote democracy, the rule of law, human rights and fundamental freedoms.

We have also stressed that it was of outmost importance to articulate a stronger immigration policy, closely connected with other Community policies, such as employment policy, so that legal immigration can become an alternative to illegal immigration and maximise the positive effects for both the Member States and the well-being of the immigrants themselves.

A call for the consolidation of the EU’s global approach to migration, providing for political dialogue and cooperation with third countries, so as to improve migratory flows, and to prevent human tragedies, was also made.

Moreover, we have also considered that it was fundamental to achieve a close fit between migration and development policies, and to enhance the dialogue with countries of origin and transit, notably with a view to averting the problem of illegal migration taking into account that effective joint action against illegal migration will put the Member States in a better position to make provisions for legal migration. In addition, while circular migration should be promoted, it should not amount to social dumping and should not underrate the need for integration measures.

The EP has further stressed that a partnership approach with the countries of origin and transit is fundamental in order to ensure that these countries take an active part in helping to manage migration flows, to prevent irregular immigration by informing potential migrants of the risks involved, and to set up effective information campaigns on the possibilities for entering and/or working legally in the EU Member States. It was also argued that all agreements with third countries of origin and transit, such as Libya and Turkey, should contain chapters on cooperation on immigration, taking into account the situation of those Member States most exposed to migratory flows.

In addition, further cooperation should be enhanced regarding the effective and rapid return of illegally staying migrants who are not in need of protection, giving priority to voluntary returns.

We have further reiterated the role played by FRONTEX in this area and have called for greater parliamentary scrutiny of its activities, suggesting a clear framework for return operations which comply with human rights standards and the establishment of regional and specialised offices.

Another important element, in my view, was the emphasis on the importance of granting migrants access to justice, housing, education and health care, in accordance, inter alia, with the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

As regards children’s rights we have considered that it was highly important to ensure that EU asylum, migration and trafficking policies treat migrant children as children first and foremost, and that they benefit from their rights as children without discrimination, especially the right to family reunification. We have also underlined, among other elements, that any EU action plan on unaccompanied minors of third country origin must ensure that all unaccompanied children receive special protection and assistance whilst in the EU and that where return to a third country is in the best interests of the child, a proper return and reintegration process is put in place in cooperation with the country of return. Furthermore, the EU should cooperate with third countries to prevent unsafe migration and to provide opportunities for children in the countries concerned.

In addition, because children of third-country origin often find themselves vulnerable to exploitative labour situations, it is especially important to address this reality in EU policies in the fields of employment, asylum, migration and human trafficking.

Ü Eurasylum: Another key issue which is being addressed by the Stockholm Programme is the fact that, despite the establishment of a common set of rules, refugee reception and asylum practices continue to differ widely among member states. This explains the Swedish Presidency’s call for measures that can reduce such disparities, particularly as regards reception conditions, the processing of asylum claims, and return migration policies. Clearly, the development of such measures also requires that responsibility for asylum applications is shared more evenly within the EU. Can you discuss your Committee’s approach to evolving asylum policy issues in the EU, including in relation to the completion of the Common European Asylum System?

Ü Juan Fernando López Aguilar: I think that the only way to ensure a more even distribution of asylum applications and better burden-sharing in the field of asylum is precisely to give asylum applicants the guarantee that they will be enjoying the same reception conditions and the same level of protection in each Member State. This means that asylum applicants should be treated in exactly the same way wherever they lodge theirs claims.

There is still a long way to go, though, before we find ourselves in a situation where we can genuinely speak of a “Common European Asylum System (CEAS)”.

Indeed, in the second phase of the completion of the CEAS, the objective pursued by the revision of the key legislative instruments was the establishment of common procedures and a uniform status, based on the same rules and the same standards. This objective, which was clearly voiced at the time, now seems to be facing an uncertain future because of a lack of political will.

At the end of 2008, the Commission presented proposals to recast the Dublin Regulation, the Reception Conditions Directive and the Eurodac Regulation, which were very ambitious in their scope and which proposed major and even bold changes. These were welcomed and to a certain extent endorsed by the former Parliament, but we must now see what will happen in the Council. From the feedback we have had so far from the Swedish Presidency (including at our 1 December LIBE Committee meeting) it appears that there are still no major breakthroughs on essential points, whether on the Receptions Conditions Directive or on the Dublin Regulation, for example as regards detention provisions, access to the labour market, the definition of family members, remedies, or suspension of transfers. However considerable progress appears to have been made on the Eurodac Regulation.

During our Committee meeting of 1 December 2009 two other important instruments, the so-called “Procedures” and “Qualification” Directives, were presented by the Commission services. These proposals have been warmly welcomed by my colleagues who consider that a thorough and open debate (including via hearings) must be engaged and taken forward.

I would also like to point out that an agreement has been reached in November with both the Council and the Commission on the European Asylum Support Office (EASO), where the rapporteur, Ms Lambert together with the shadow rapporteurs, have strived to find a very balanced and clear text for an instrument which will promote and improve practical cooperation in the area of asylum, support harmonisation efforts in the EU and facilitate work in national agencies.

As final remarks, I would like to say that my Committee will need to try and develop a common approach, or at least to reach a certain degree of compromise, on some of the crucial issues at stake, such as the safe third country concept, the guarantees for unaccompanied minors or the scope of legal assistance, to mention just a few. I hope that we will be able to work hand in hand with the Commission and the Council towards a higher degree of harmonisation of the rules governing the processing of asylum applications, and above all towards a higher level of protection.

But even so, the problem of secondary movements and of multiple applications, and more generally the question of burden-sharing, will remain unsolved until we manage to create a Common European Asylum System worth its name.