In 2006, CEPS was asked by the Civil Liberties Committee of the European Parliament to prepare a number of briefing papers on issues of substantial interest in the field of immigration, asylum, borders, biometrics and data protection. The objective of this series of briefing papers was to inform the Parliamentary Committee on the debates, issues and state of play on these issues.
Over the year we prepared 14 briefing papers which can be grouped under six main headings – access to the territory of the EU; lawful presence on the territory; unlawful presence on the territory; expulsion; tracking the individual and a return to intergovernmentality. The European Parliament has, in the spirit of transparency and generosity, permitted us to publish these notes, slightly amended in this collection. Each briefing paper was prepared by a different expert working with the CEPS team. To each of them we are deeply grateful for their hard work and contribution to the project.
In publishing now the series of briefing papers, we want to make available to a wider public, academic analysis by acknowledged experts in the justice and home affairs field on the issues of great current concern. The subjects cover a wide range of issues from the nature of citizenship and integration policies of the Member States to the principle of availability of police data to authorities of all Member States including the developing use of biometric data. Each chapter of this book constitutes a distinct and self contained essay which encapsulates the current debates around an issue. Many of the chapters include the recommendations which our team of experts proposed to the European Parliament in their briefing notes. Most of the chapters also include a bibliography to enable the reader to find further information on each subject.
Access to the territory
This section consists of three chapters commencing with an analysis of the current Common Consular Instructions. These instructions are addressed to the visa officers of the Member States of the EU which participate in the Schengen acquis. The purpose of the instructions, first issued in 1993, was to provide a common manual for visa officers on how to issue Schengen short stay visas which are valid for entry into the whole of the Schengen for a period of three months. The instructions apply to all Member States except those who joined the EU in 2004 (10) and two others – Ireland and the UK. They continue to apply to Denmark as it had signed up to the Schengen acquis as intergovernmental though it has rejected the transfer of that acquis into the competence of the EU. While the power to designate which countries would be on the EU white list – ie their nationals do not have to obtain a visa to enter the common territory for a short stay – and those on the black list – ie those whose nationals do have to obtain a visa to enter the common territory for a short stay – was passed to the EU in 1993, the rules on how to issue visas and to whom remained in the Schengen acquis, intergovernmental in nature, until 1999. The note was prepared in preparation for the presentation by the Commission of a proposal for a Visa Regulation to replace the CCI. The issues which are addressed in the note were the strengths and shortcomings of the CCI and how it has been applied in practice. One of the key fields for improvement in the opinion of our experts was to ensure there is real harmonisation, not just a common outcome – either a visa or a refusal.
The second note under this heading is on the Commission’s proposal for a regulation on the issue of visas to replace the CCI. In time, it is one of the latest notes to be prepared and considers the first draft of the Commission’s proposal which at the time of writing was before the European Parliament and the Council. One of the key developments which the note describes and criticises, is the parallel construction of the Visa Information System (VIS) a database into which much information divulged in the process of a visa application will be inserted and made available to a wide group of authorities across the EU. The inclusion of biometric data, in particular in the form of finger prints, is the subject of substantial discussion in this note, as to legitimacy and efficiency. For the first time in this collection, the question of interoperability of databases is raised.
The third note considers what happens to those who arrive at the EU border but fail to make it past the border and thus find themselves incarcerated in transit zones. The legal framework of such zones is described as well as the legal consequences of creating such zones and areas of exception. Transit zones have not gone un-noticed in the EU discussions about the treatment of foreigners. Those who have been detained in such zones while moving from outside the Union to within it (though in some cases only in transit in the EU on their way elsewhere) has troubled the European Ombudsman and the European Court of Human Rights. These issues are discussed in this note.
Lawful Presence on the territory
The second section of this book contains two notes which grapple with the EU’s engagement with migration. The first outlines the key trends in the EU on economic migration, a subject which so far has failed to enjoy harmonisation in EU law, even in the limited form of minimum standards. The most important thread which ties together new measures adopte4d in a number of Member States is the focus on highly skilled migration as a privileged category enjoying reduced bureaucratic hurdles against what is perceived of as low skilled migration (which in many parts of the EU is in fact in greater demand) where the constant addition of new administrative obstacles has made lawful admission and work increasing difficult, read unlikely. This trend is to a large extent driven by the confidence of administrations in the Member States that they understand better the needs of the markets than market actors themselves.
Closely related to the economic migration note is the next chapter of the book which provides an overview of the debate on integration of migrants in the EU. What is clear from the trends at Member State level is that the perceived dichotomy between multiculturalism and assimilationism no longer holds true. Instead, some Member States are rushing to redefine themselves via the manuals which they produce for their foreigners regarding what their culture, norms and values are. The struggles at the national level regarding values are left behind in the interests of a common front to present to the foreigner who is living in the state. The move towards mandatory integration programmes including test and even to the requirement for prospective immigrants to integrate before they arrive makes curious reading. Somewhat depressing, however, is the fact that integration appears on the whole to designed for the low skilled or those having difficulties in the labour market not for the highly skilled or wealthy.
Unlawful presence on the territory
This section consists of three notes, each one dealing with a different aspect of detention of foreigners. In the first, the legal framework of detention of foreigners in the EU is set out. In particular, the human rights obligations under the European Convention on Human Rights are described and their relationship with the detention of foreigners in the Member States highlighted. The EU must not disregard its obligations to foreigners as human beings with acquired rights in international law – in particular as regards one of the most fundamental of human rights that of liberty of the person. In the second note in this section, the types of places of detention are examined – accommodation centres or camps – depending on the terminology. The diversity in this group is fundamental to understanding the socio-legal process at work. Some of these places are public, other private; some official, other unofficial; some intentional others improvised; some temporary others permanent; some elementary regarding the conditions, others highly sophisticated. All, however, share the effect of separating the individual from the wider community but subsuming him or her into a false community in which his or her individuality is drowned.
The third note in this section considers detention from the perspective of its consequences on children. Who are the children who are found in detention centres and what are the effects of the detention on them. The description of the abuses of children in detention in various Member States makes most depressing reading particularly when considered against the state obligations in human rights instruments to ensure the best interests of the child are safeguarded. The recommendations to this note are clear and unconditional ending with a call for the genuine adherence by all states to the principle of ‘detention only as a last resort’, clearly a call which can be ignored only at great risk to the legitimacy of an system of administrative detention of foreigners.
This is a field in which the EU has only just begun to move. The starting place here has been the proposal by the Commission for the creation of a European Return Fund. The question which is addressed in this note is whether there is a real added value in the EU’s engagement in this field of whether the disadvantages are too substantial. The history of EU measures in the field are carefully plotted with an explanation of how the Commission has come to make the proposal. However, on balance, the conclusion is that this is premature not least because the definitions of irregular and illegal migrants remain unharmonised thus giving rise to an uncertain subject matter for such an important yet human right sensitive measure.
Tracking the individual
One of the key developments which has been accelerated by the fears of terrorism which have permeated the 21st century so far, has been the imperative of state authorities to keep track of the individual, whether citizen of foreigner. Somehow the idea that if the authorities are aware of the whereabouts of an individual at any given time on the territory of the EU, the EU will be a safer place in general has taken hold in the official imagination. The result of the success of this idea has been the development of ever more sophisticated mechanisms to keep track of where people are, where they have been and the prophetic art of where they might be going next. In this section, four notes examine different aspects of this development starting with the trends in biometrics and finishing with an analysis of the Commission’s proposal for improved effectiveness of European databases. In the first note in this section, the reader will find a discussion of the political and technical claims regarding biometric identifiers which includes a clear and concise definition of what they are (too often missing in this debate). The relationship of information technology with the development of biometrics is inescapable as it is the technological capacity to deal with large amounts of fairly specific data which have enables the appetite for the collection, storage, manipulation, transfer and deletion of personal data to take place. While the language of the technical experts is impenetrable, this note makes comprehensible the fundamental issues at stake for the individual. In particular the note examines public perceptions of the collection, storage and use of biometric data and the responsibilities of policy makers to address the concerns which are being expressed.
The second note is this group deals more directly with the question of biometric data included in different identity documents – in this case residence permits for third country nationals – though with very real future prospects of application to EU citizens identity documents. The biometric data which is proposed to be included in the ID documents includes facial image and finger prints. The efficiency of the biometric identifiers is questioned in detail on the basis of current critical technical information. The proportionality of the collection and use of personal data is also examined from the perspective of public acceptability, state authority and international human rights standards. The note proposes alternative options to the collection and storage approach implicit in the creation of databases including on-card biometric documentation so that the individual remains the only person in control of his or her data which can be read only with his or her consent and not captured.
The next two notes are primarily descriptive, providing an overview of the state of play which was current in mid 2005 regarding the development of the Schengen Information System II – to cope with the enlargement of the EU to include the 2004 Member States in a new and improved SIS. The note places one of the sources of difficulties in the operation of the current system firmly at the feet of the current users who have a problematic attitude to the database and fail to use of it. If the officials for whom the database has been created do not want to use it, questions must arise as to whether the further investment of substantial sums of EU money are well spent on enlarging the capacities of the system. Following on from this in the fourth note in this section a good summary of the Commission’s communication on improved effectiveness, enhanced interoperability and synergies among European Databases. Of course, behind the cautious framing of the communication may be noted a number of issues – competition among private sector companies for a very lucrative market in database development and maintenance, deep reservations in many Member State authorities about the wisdom of interoperability of systems which would reduce effective controls at many levels regarding who is peeking into the databases and a substantial number of other issues. The note is largely supportive of the Commission’s approach notwithstanding the serious problems which it raises.
A return to intergovernmentality?
The final two notes in this series deal with a much vexed treaty – that of Prüm. In May 2005 seven Member States signed a new treaty in the Germany city of Prüm – heralding a new epoch of intergovernmentalism. Those readers who have followed the JHA area in EU affairs over the past 15 years will be well aware of the substantial controversy over the development of the intergovernmental Schengen acquis which ran in parallel, and some would say, competition, to the completion of the EU’s internal market. The confrontation only ended in 1999 when the Amsterdam Treaty brought the whole of the Schengen acquis under its wing – not without serious institutional indigestion which is still being resolved. The Prüm Treaty introduces the possibility of a new parallel universe of Member State activity outside the scope of EU action proper but impinging on important EU competences – cross border crime, terrorism and illegal immigration. The fact that the Prüm Treaty included only seven Member States on inception meant that it was not subject to control by the Council which would have automatically applied had there been eight EU participants under the closer cooperation provisions of the Treaty on European Union. Leaving the technical issues aside (and there are four more Member States now lined up seeking to join Prüm which has not even been ratified yet by its original seven and thus is not yet in force), this note looks at the contents of Prüm – including irregular migration and cooperation in policing, access to police data and exchange of information from the perspective of the duty of loyalty contained in Article 10 EC. Can some Member States still claim to be loyal to the EC Treaty when they enter into separate agreements with only some of their number regarding issues which are covered by the EC Treaty (;et alone the EU Treaty)? This note expresses some reservations about such a position and sets out, including tables, where the overlaps are and where the points of conflict in loyalty could occur. The final note addresses head on the problem of competition between the Treaty of Prüm and the EU. It examines the scope of friction and plots the rocky road ahead should the seven Member States seek to remain outside the EU ambit. Even the argument of efficiency, always the national authorities’ last resort in competence struggles on EU law, does not hold water as this note sets out. There are indications that the German Government under its presidency will be seeking to incorporate Prüm in one form or another rapidly into the EU – perhaps an indication that the arguments set out in this note are particularly persuasive.
This series of notes tells a story about the preoccupations of policy makers, in particular of the European Parliament in 2005 regarding the field of justice and home affairs. But it also incorporates a wider narrative of the relationship the Member States and the EU regarding the most sensitive areas of sovereignty and EU competence. The importance of this book will not pass with the end of the year. Instead these notes form a critical basis for understanding the underlying premises and struggles which inform the EU’s area of freedom, security and justice in 2005 and will continue to do so for the next ten years at least.
Read the brief notes
An Analysis of the Commission Communication (Com(2005) 597 Final of 24.11.2005) on Improved Effectiveness, Enhanced Interoperability and Synergies among European Databases in the Area of Justice And Home Affairs