Harmonization in the European Union: Asylum, Migration and Integration Institute for Social Research, Oslo, 24 November

1. Harmonization in the European Union: Asylum, Migration and Integration Institute for Social Research, Oslo, 24 November 2009 Irregular Migration in Europe Ryszard Cholewinski Migration Policy and Research Department International Organization for Migration (IOM), Geneva

2. Presentation content • Focus is less on complexities of phenomenon of irregular migration itself, but more on the EU policies being formulated to address it • Need to tackle topic of irregular migration in a more honest, holistic and integrated manner

3. Presentation content (cont’d) Five areas where better synergies need to be developed: • Terminology • Linkages with legal/ regular migration • Treatment and human rights of all migrants, irrespective of their immigration status • Internal and external (externalization) dimensions of EU immigration law and policy • Management of irregular migration and mixed flows

4. 1. Terminology

5. Combatting “illegal” migration • Lynchpin of EU’s immigration policy, both in its internal and external dimensions • E.g. Commission June 2008 Communication on “A Common Immigration Policy for Europe” • Justification? • To ensure credibility and acceptance of policy on legal/ regular immigration • Manifested in the principal measures adopted in this field • E.g. Return Directive, FRONTEX Regulation (as amended)

6. Irregular/ undocumented migration • “Irregular migration” appears throughout Commission’s October 2008 Communication on “Strengthening the Global Approach to Migration: Increasing Coordination, Coherence and Synergies” • Global Approach to Migration articulates external dimension of EU policy in this field • Why “irregular” (or “undocumented”) migration? • Fundamental right of everyone to recognition as a person everywhere before the law • Avoids criminalizing/ stigmatizing such migrants • Neutral terminology used by international and regional organizations with a migration mandate (ILO, IOM, Council of Europe)

7. 2. Linkages with regular/ legal migration

8. Linkages inevitable • Difficult to discuss irregular migration in isolation without reference to regular/ legal migration • Many irregular migrants are in employment • Causes of both regular and irregular migration are similar • Argument often advanced that one important means of reducing irregular migration is creation of more regular migration channels

9. Law and policymaking on legal/ regular migration to EU • EU at a distinct disadvantage • No legal competence to determine “volumes of admission” of third-country nationals for purpose of employment (enshrined in Lisbon Treaty) • But EU does have a mandate concerning visa policy relating to short-term visits (but not in respect of Ireland / UK) • Visa facilitation also possible • To some degree, move towards adoption of mobility partnerships reflects this limited EU competence

10. Law and policymaking on legal/ regular migration in EU (cont’d) • Legal/ regular migration was seen as “missing link” in formulation of EU immigration policy • Recent developments • Student and Researchers Directives • Blue Card Directive (highly skilled migration) • Commission proposal for “General Framework” Directive on single application procedure for a single permit for third-country nationals to work and reside in EU Member States and on a common set of rights • Policy Plan of Legal Migration: “other measures” • Cooperation with third countries (e.g. temporary/circular migration) • European immigration portal

11. Blue Card Directive • Background – most highly skilled migrants go to U.S. Canada and Australia and not EU MS • Does it meet expectations of third countries in terms of legal/ regular migration to EU? • Inherent limitation on determining volumes of admissions to EU • Incentives sufficient? • More social rights, including facilitated family reunion • Possibility of moving to another EU MS after 18 months of lawful residence in first MS • Advantages of immediate permanent residence in terms of mobility and contribution to country of origin • No obligation on MS to replace their own schemes for admitting highly skilled migrants with Blue Card

12. Proposed General Framework Directive • Single application procedure for a single permit for third-country nationals to work and reside in EU MS • Would also encompass admission of low or semi-skilled third-country national workers • But no obligation on MS to admit such workers • Need for policy changes at level of MS to ensure that structural demand for such jobs is met • Policy position in some MS (e.g. UK) that demand in low/ semi-skilled sectors can be met by nationals from new MS Crux: If demand for low-skilled workers is not met, employers turn to the informal labour market, which is also pole of attraction for irregular migrants

13. 3. Treatment and human rights of all migrants

14. EU measures: a fragmented approach to rights • Elements of a uniform EU approach to treatment of third-country national workers in proposed General Framework Directive • But standards are minimal in comparison to what is offered to highly skilled migrants in Blue Card Directive • Contrast with horizontal approach in Swedish labour migration law (and rejected in 2001 Directive)

15. EU measures: a fragmented approach to rights (cont’d) • Approach sits very uneasily with international and regional human rights law, which applies principle of non-discrimination to all persons regardless of their nationality or skill level • Core international human rights law (e.g. ICCPR, ICESCR) • European Convention on Human Rights 1950 • Specific instruments protecting migrant workers • 1990 Migrant Workers Convention • ILO Conventions No. 97 and No. 143 • European Social Charter / Convention on Legal Status of Migrant Workers • EU Measures also silent on rights of those third-country nationals who work in EU MS without authorization

16. Basic Facts on 1990 Migrant Workers Convention • Not ratified by a single EU MS or EEA country • Only three Council of Europe MS have ratified it: Azerbaijan, Bosnia, Turkey • Africa: ratified by 17 countries • Asia/ Central Asia: ratified by three significant countries of origin – Philippines, Sri Lanka, Kyrgyzstan, Tajikistan • Latin America and Caribbean: ratified by 15 countries • 13 States parties have submitted initial periodic report to Migrant Workers Committee

17. Whither a legal framework for protection of all migrant workers? • Return Directive: EU Member States which ratify 1990 Migrant Workers Convention will have to put in place more favourable standards, particularly in the expulsion process • 1990 Migrant Workers Convention also affords fundamental rights to all migrants, including social rights such as access to (emergency) health care, social security and education • Currently no EU legally binding measure in place devoted to protection of all migrants irrespective of their immigration status • Proposed Immigration Code unlikely to change this position • Although EU Charter of Fundamental rights generally does not distinguish on the basis of legal status • Irregular migrants will have to rely on national legal frameworks; ECHR; or, in practice, the goodwill of local authorities and NGOs

18. 4. Internal and external dimensions of EU immigration policy

19. EU Global Approach to migration • Commission’s October 2008 Communication on the EU Global Approach to migration notes that it is “based on genuine partnership with third countries, is fully integrated into the EU’s external policies, and addresses all migration and asylum issues in a comprehensive and balanced manner” • Three thematic areas: (1) legal migration, (2) fight against irregular migration, and (3) migration and development • Approach purports to be different to the essentially “security-centred” approach pursued in the past largely focusing on preventing irregular migration • Welcome shift, but in practice the security paradigm continues to predominate • Readmission agreements / role of FRONTEX • No comprehensive legal measures on migration and development (some provisions in Blue Card Directive on ethical recruitment) • Mobility partnerships?

20. Importance of policy coherence and synergies • Integration of / mainstreaming migration into external relations policy of EU insufficient alone • Important that there is coherence and synergies between internal and external dimensions of EU immigration policy

21. 5. Management of irregular migration and mixed flows

22. Mixed flows • Realizing the rights of all migrants in the EU irrespective of immigration status becomes especially salient when considering irregular migration and mixed flows • Mixed flows defined as “complex population movements including refugees, asylum-seekers, economic migrants and other migrants” (IOM Glossary, 2004) • In essence, mixed flows are irregular movements • Most visible in Europe in Mediterranean (Lampedusa, Malta) and Eastern Atlantic (Canary Islands)

23. Mixed flows (cont’d) • Present particular challenges to States not only because they infringe on their sovereign prerogative to determine which non-nationals may enter their territory, but also because persons involved in such movements are more likely to be subject to hardship, human rights violations and discrimination, and thus require special and individualized assistance • Focus is often on asylum-seekers and refugees because of non-refoulement principle • But mixed flows also comprise particularly vulnerable groups, such as victims of trafficking, smuggled migrants, stranded migrants, unaccompanied minors, and those subject to violence (including gender-based violence) and trauma in migration process

24. Mixed flows (cont’d) • When no explicit legal framework for protection of the rights of all migrants in EU, it is difficult to envisage how asylum-seekers, refugees as well as particularly vulnerable migrants in mixed flows can be adequately assisted and protected • Council of Europe Parliamentary Assembly Resolution 1637 (2008) of 28 November 2008 on Europe’s boat people: mixed flows by sea into southern Europe • Recommendations to Council of Europe Mediterranean Member States and EU (with the support of EU MS)

25. 5. Conclusion

26. Conclusion • EU and its Member States find themselves between a rock and a hard place • The Rock of fundamental human rights standards, which apply to all persons irrespective of their nationality and immigration status, including the estimated 8 million irregular migrants in the EU • The Hard Place of negative media and public opinion, which tends to villify migrants, particularly in hard economic times, and expects politicians to deter further immigration But this does not mean that there is no room for policymakers to engage on the issue of irregular migration

27. Thank you for your attention RyszardCholewinski rcholewinski@iom.int