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Irregular Migration

EU policymaking in the context of irregular migration

The Treaty of Amsterdam: first steps towards a Common European Asylum System

The entry into force of the Amsterdam Treaty in 1999 reshaped cooperation in justice and home affairs (JHA) thus marking a new phase in EU asylum and migration policymaking. A primary goal of the Treaty was to progressively establish an area of freedom, security and justice (AFSJ). Consequently, issues related to asylum, migration and external border controls were transferred from the third pillar, which required unanimity in an intergovernmental setting, to the first pillar, falling under the shared responsibility of both EU member states and institutions. In addition, the Treaty formally incorporated the 1985 Schengen Agreement and 1990 Implementing Convention into the EU legal framework as the Schengen acquis.

At the same time, however, decision-making in the Council required unanimity and the European Parliament (EP) did not gain co-decision powers, meaning that the Treaty did not lead to full implementation of the ordinary legislative procedure. Furthermore, Denmark, Ireland and the UK secured the right to ‘opt out’ of the treaty’s provisions as regards JHA, allowing them not to take part in the adoption of measures relating to the AFSJ and hence not to be bound by measures adopted by the other member states. Nevertheless, Amsterdam represented a significant step forward in the development of common asylum and migration policies, reflecting the political commitment to enforce European integration in this sovereignty-sensitive policy domain. Most notably, Article 63 laid down a 5-year programme to develop the necessary measures on asylum and migration and set out objectives for the first stage of the Common European Asylum System (CEAS).

With the ground set for Community decision-making, the 1999 European Council in Tampere was dedicated to the creation of an AFSJ. Under this initiative and the ensuing Tampere Programme, which provided ‘the political mandate and the overall policy agenda for initial action towards establishing the AFSJ’, negotiations started on the creation of a CEAS comprising a set of legislative instruments (Buono 2009, p. 333).

In keeping with the aim to establish a CEAS, the need arose to replace the Dublin Convention with a Community instrument. The Dublin II Regulation, which replaced the largely identical 1990 Convention, entered into force in 2003 prior to the then-approaching ‘big bang’ enlargement (prospected in May 2004 with the joining of 10 new members). The negotiations leading up to the ratification of the Dublin System (comprising the Dublin Regulation and the Eurodac Regulation, which went into operation in 2003 and established a biometric database for comparing fingerprints of irregular migrants) were, however, characterised by political deadlock for years.

Also adopted in 2003, the Reception Conditions Directive (RCD) laid down minimum standards for the reception of asylum seekers while their claim is being examined. The Directive has been heavily criticised for the wide discretion left to member states, which undermines the creation of a ‘level playing field’. In this regard, the southern states have most notably been in the limelight. Greece failed to provide reception conditions for asylum seekers on a par with the requirements of the directive, as stated in the ECtHR’s 2011 landmark judgment in M.S.S. v. Belgium and Greece.

Italy and Malta have also been accused of failing to provide adequate reception conditions for asylum seekers, in violation of the minimum requirements of the directive (Langford, 2013).

It is important to point out that the aim pursued in the first phase of the CEAS (1999-2004) involved harmonising national asylum systems through the adoption of Directives and Regulations on the basis of ‘common minimum standards’ (Wagner et al. 2019). The approach of adopting minimum standards (instead of genuinely common ones) was dictated by its political feasibility, yet it included the objective of harmonising legislation. In practice, the adoption of minimum standards set in motion a ‘race to the bottom’ across EU member states with regard to harmonisation of such policies, exacerbated by the introduction, in most member states, of restrictive migration policies to prevent irregular migration.

This harmonisation ‘ad minima’ was further reinforced by the influence of the Council on the drafting of the CEAS instruments. While the Commission proposed rather ambitious drafts in order to draw the layout of the CEAS in conformity with the Tampere Conclusions, the Council negotiations compromised the substance of such instruments (Chetail, 2016). The reforms achieved in Amsterdam in the context of EU asylum and migration policymaking thus did not go as far as intended. Given the number of institutional issues left unresolved, a solution became more pressing in view of the upcoming ‘big bang’ enlargement of 2004. This led to new negotiations, in 2000, over the future of the EU, culminating in a new agreement amending the Treaty of Maastricht and the Treaty of Rome.

 

References

Buono, L. (2009) From Tampere to The Hague and beyond: towards the Stockholm Programme in the area of freedom, security and justice, ERA Forum, 10 (3), pp. 333-342.

Chetail, V. (2016) The Common European Asylum System: Bric-à-brac or System? In: Chetail, V. et al. (eds.) Reforming the Common European Asylum System: The New European Refugee Law. Boston: Brill Nijhoff, pp. 3-38.

Convention Implementing the Schengen Agreement. The Schengen acquis – Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, 14 June 1985 [OJ L 239, 22.9.2000]

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [OJ L 31, 6.2.2003] (‘Reception Conditions Directive’).

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [OJ L 50, 25.2.2003] (‘Dublin II’).

Langford, L. M. (2013) The Other Euro Crisis: Rights Violations Under the Common European Asylum System and the Unraveling of EU Solidarity, Harvard Human Rights Journal, 26, pp. 217-264.

M.S.S. v. Belgium and Greece, European Court of Human Rights, Application No. 30696/09, 21 January 2011.

Presidency Conclusions, Tampere European Council, 15-16 October 1999.

Wagner, M., Baumgartner, P. and Mouzourakis, M. (2019) Harmonising asylum systems in Europe – a means or an end per se? CEASEVAL research on the CEAS, no. 25, April. Available from: http://ceaseval.eu/publications/25_WP2_HarmonisationWP.pdf



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