EU member states must find new solutions over migration policy
Ten years ago, there was essentially no pan-EU migration policy. Even though the common migration and asylum policy had been written into the EU Treaties,1 its implementation remained modest for a long time. By 2008, only a few directives had been adopted, concerning, for example, the right to family reunification, penalties for the facilitation of illegal crossing of borders, and principles of issuing residence permits to victims of human trafficking. In the field of asylum, things were a bit more advanced and the basic Dublin system2 already existed, defining the legal requirement that the member state into which an asylum-seeker crosses the border must deal with that individual, and establishing the minimum standard for reception conditions.3
Things have developed by leaps and bounds over the last ten years: almost all directives have been amended and many new ones have come into force. Essentially, a common capacity for managing the external border and a common asylum policy has been developed, alongside common principles for treating people who reside in a country without legal basis and arranging their return. Moreover, a number of shared principles have been put in place for organising legal migration to the European Union countries.
During this period, the EU has also launched many new joint actions. The mandate of the European Border and Coast Guard Agency (Frontex) was considerably extended and the European Asylum Support Office (EASO) was created. There are also several new channels for cooperation. One of these is the European Migration Network (EMN), which celebrated its tenth year of operation this year and is the research and communication network in the field of migration and asylum established and coordinated by the European Commission.
This is therefore a good moment to summarise developments over the last ten years,4 look into the future and analyse what factors influence the development of EU migration policy—in other words, to consider whether we can talk about a common EU migration policy in the future or, instead, about a collection of increasingly aligned migration policies in Europe?
A Rocky Road to Joint Action
Migration policy is a complicated, yet critical field from the perspective of national sovereignty. After all, each sovereign state is entitled to decide who can enter their territory and under what terms. But this field is influenced by several inherent axes of tension that determine the formation of a common migration policy in the EU.
As with all types of politics, path dependence also impacts migration policy: people usually do not want to change what is already in place. It is evident at both member state and EU level that all parties prefer to develop their existing policies and substantive changes are rare. The main factors counteracting against path dependence are crises, during which the readiness of parties to make critical changes is different. In the field of migration such a factor was, of course, dubbed the European Migration Crisis, which increased pressure mainly on the EU’s southern border and later, in the form of secondary migration, tested the reception capacity of countries almost everywhere.
The migration policy developments have also been shaped by fluctuations along the nation-state centrism—European integration axis. There have been a number of important moments of Europe-wide solidarity and collaboration over the last decade, yet the narrative that frames European integration as a process that goes against the will of the people and nation-state-centrism remains strong. These tensions are also evident in Brussels, especially if we observe the relations between the European Commission and the European Council, made up of ministers from member states, where the latter often restrains the proposals of the former in the field of migration.
Thirdly, migration policies are dependent on the ways in which member states and EU institutions answer the question what kind of state and union they want. On the one end of the spectrum we find the possibility is to see oneself more as autarkic and focus mainly on internal problems and “insiders”. Yet at the other, the desire for more global ambitions: to be among globalisation’s winners and compete against the world’s other great powers in economic terms (e.g. in the race for talent, global capital etc.), geopolitically (seeing oneself as a guarantor of world order) and culturally (e.g. representing certain values).
These three tension axes influence policy developments in migration and other fields. Both internal and external factors move the goalposts during negotiations, enabling a shift towards greater cooperation or even a common policy on one aspect, while in other areas keeping quite strict barriers in place. Policymakers (but also societies at large) can have very different opinions about, for example, the migration of high-earning and highly qualified talents, who are usually welcomed with open arms, and refugees landing illegally by boat, who are seen more as criminals than as people in need of help. Hence, we will start by exploring developments in the field of irregular migration and then move on to legal migration.
Building a Fortress with a Touch of Humanism
In the field of irregular migration there have been three priorities on the EU level in the past few years: implementing a common asylum policy, fighting illegal migration, and organising the return to their country of origin of people staying in the EU with no legal basis. The driving force behind these developments has been the migration crisis of recent years. In the last ten years, member states have received over 5.7 million requests for asylum (almost half of them in 2015–17) and just over two million people were granted international protection during that period. However, in the same period some 7.5 million third country nationals were found to be illegally present, nearly half of the cases were reported in the past three years (2015–17).
Several practical examples also suggest advancements in the implementation of the common policy. Eighty-nine percent of all international protection decisions granted that status on the basis of the EU’s common asylum policy.5 A rapid-response unit made up of more than 1,500 experts from member states has gathered under the aegis of Frontex and is ready to go to a crisis area and help to manage the border at any time (at least 1,300 “rapid responders” are on missions at almost any given moment).6 Under EU leadership, readmission agreements have already been signed with 17 countries,7 with which it is possible to send back those illegal immigrants who do not have a legal basis to be given asylum. There is also a common EU travel document for returnees who do not have identity papers. Member states also contribute to the EU Emergency Trust Fund for Africa to support migration cooperation and so on.
In some respects, achieving cooperation in the field of irregular migration has been easier than in legal migration, mainly due to the shared sense of crisis. However, we cannot talk of a completely common strategy and aligned values. On the one hand, the principle of “Fortress Europe” rears its head in the EU’s policy on asylum, return and border management: it is important to create a situation in which the external border is maximally effective and as difficult as possible to illegally cross. On the other hand, humanitarian principles are also emphasised in the fight against irregular migration and in view of return policies. It is important to guarantee the right to protection for people who are in danger of persecution or whose lives are threatened and the humane treatment of all people, even those who have come to Europe illegally.
This solution is, in a sense, a compromise, trying to please both the autarkic, insider-centric mentality and the world-view that sees the EU as a beacon of values. However, this means that often EU’s joint actions are caught in the crossfire for that reason. While some consider the agreement with Turkey that slowed down the flow of migrants on the eastern Mediterranean route too soft, others saw this solution effectively as a violation of human rights, as it decreases the chance of people fleeing from conflict or persecution finding asylum at all.8
Development cooperation that mitigates migration faces the same problems. While the more radical “Fortress Europe”-minded people consider it a waste of resources to invest in economic migrants from Africa to enable them to subsist and work in their home countries, liberal humanists consider it a caricature of neo-liberalism. If the goal really was to alleviate poverty in Africa, immigration would actually be a solution, since research also shows that it has a considerably stronger positive effect on growth than any development cooperation projects.
The interaction between the principles of European integration and nation-statehood is felt in the field of irregular migration, which became very apparent in the discussions over the alternatives proposed by the European Commission in the context of the Dublin system and plans for resettlement and relocation. Much has been said about the crisis in European solidarity—statistics also show that Western and Southern Europe still have to carry the burden of the migration crisis despite the relocation programmes and a wave of secondary resettlement.9
Another set of problems, but in the short term, seems to be related to the aftermath of the crisis—more precisely, mitigating the crisis has also reduced member states’ willingness to implement common policies. The number of effective returns has again begun to decrease and it is also clear that the Turkish border has started to leak again. There is also a continuing battle against illegal immigrants—ships from Libya have started to land in new areas where the border is the least guarded. People are also coming up with creative ways to cross the border in other areas—e.g. the town of Nikel, close to the Russian-Norwegian border, ran out of bicycles after they were all bought by refugees who had heard that it was only possible to cross the border with a vehicle.10
Porous Borders and a Multi-speed Migration System
In parallel, in recent years there have been talks about a different crisis concerning workforce—or the lack of it. Many European countries (including Estonia) face a demographic crisis: the population is aging, the proportion of working-age people is declining, and the sustainability of social systems and the economy is in question. In contrast to previous notions that the workforce crisis can be alleviated mainly by raising the birth-rate and retraining, almost all governments in Europe have recently begun to realise that a viable solution inevitably also includes immigration. For that reason, most EU member states have reformed their policies on legal migration in order to incentivise the arrival of much-needed workers.
It must be pointed out that migration systems are becoming multi-speed across Europe thanks to reforms concerning legal migration, and borders are becoming porous: possibilities for crossing borders and migration depend more and more on who a person is. In the case of workforce migration, the dominant narrative is the need to choose migrants with suitable skills and education and who meet the requirements of the labour market. Even though some businesses are still interested in finding the cheapest workers, countries are beginning to prioritise the migration of skilled workers and top specialists (“talent migration”). The Commission’s Europe 2020 Strategy11 also stresses the need to encourage new economic migration in sectors that lack workforce and skills, and recommends focusing mainly on facilitating the migration of highly skilled third-country nationals.
However, the reasons for moving towards porous borders and a more selective migration system may vary. Autarkic dynamics can play a role alongside the obvious nation-state-centric factors. Workers are needed in order for the economy to function for everyone, but at the same time countries wish to exercise their sovereignty to decide who can be regarded as part of their population. What makes the situation even more complicated is the fact that the nature of work is changing fast. As a result, countries face difficulties in matching the knowledge and skills of workers with the needs of the local labour market, and in many parts of Europe there is simultaneously a high level of unemployment and a lack of suitable workers.
The regulation of legal migration on the EU level is driven by the wish to be globally competitive. Just like many other economic resources, human capital—which plays a key role in today’s economy—is a limited resource, which has created global competition to attract the best and most talented. Even though the European Union is one of the biggest and wealthiest economic areas, its multitude of languages, its mature economy—where development is slow and willingness to take risks low—and differences between countries over their stance on migration policy have reduced Europe’s attractiveness compared to North America and countries in Asia and Oceania. According to the OECD, Europe is currently losing the “talent war” to countries such as Canada, Australia and New Zealand, but also to China and Singapore, which means an economic threat to the region as a whole.
In order to increase global competitiveness, Brussels has been trying to move towards a common migration policy in this field too. The most important step towards fostering the immigration of a highly qualified workforce on a pan-EU level is the Blue Card Directive, first adopted in 2009. The intention of the Blue Card was to create common standards for qualified workers entering the EU in all member states and to make the system for qualified workforce migration easier and more transparent for all parties. However, in some cases the result was the opposite and the directive has not achieved its desired objectives. There are many reasons why the Blue Card has been unattractive thus far: application requirements are quite burdensome and restrictive, and the Blue Card gives few advantages compared to the similar schemes of the member states themselves.
To correct the failings of the previous directive, the European Commission presented proposals for developing a new Blue Card Directive in 2016. In general the changes are quite moderate but, according to the new directive, member states must do away with their parallel residence permit schemes aimed at highly qualified external workers. This is a controversial proposal, since it essentially means that the management of qualified workforce migration would move from the hands of member states into the competence of the EU. Negotiations on the new directive are ongoing but, if member states are willing to give up their parallel schemes, this would be a very significant step towards a common migration system in Europe.
But how likely is a common policy in the field of legal migration? Despite the member states having similar needs, cooperation has clearly been more difficult in this field. A more popular route has proved to be establishing common minimum standards that regulate, for example, family reunification, and the migration of scientists, students, au pairs, volunteers, and seasonal workers and employees posted abroad within a company.
The member states have very different considerations in this field and it is difficult to create a common system that could take all their needs into account: it would be very complicated to create a migration policy that would, at the same time, deal with the workforce needs and realities of, for example, Germany, Spain and Estonia, let alone a system that could satisfy all 28 (soon 27) member states. At the same time, there is no incentive strong enough (either through a sense of crisis or a global ambition) to inspire joint action.
EU Migration Cooperation as a Force That Balances Extremes?
In conclusion, even though we cannot yet talk of a common European migration and asylum policy, important steps have been taken towards cooperation and coordination at the European level over the past ten years, despite hardships and opposition. Migration policies in member states are more aligned than ever before. More could be done, but essentially we have achieved in those ten years what had been pending for decades. That is remarkable compared to, for example, the speed of processes at the UN.
At the same time, it is impossible to imagine a so-called ideal European common migration policy. As previously mentioned, value conflicts and tensions have been built into the current policy, and this is, to a certain extent, inevitable in the complicated decision-making process and democracy of the EU.
This is why it should be recognised that the so-called minimum-standards policy of the European Union is actually not so bad, especially in areas closely related to national sovereignty like migration. The minimum standards laid down in directives have created a certain legal framework for all member states and are, as such, a force that balances extremes. At the same time, it is important that there should be softer and more horizontal measures supporting Europeanisation in addition to the minimum standards set up centrally. It is necessary to create a shared experience through international cooperation and exchanges of practice. And for that to happen, it is not essential to have a common migration policy on paper, but rather a platform for exchanging and comparing knowledge and experience.
In an age of migration, where the number of refugees is ever increasing, searching for common solutions is more important than ever. While there were about 84.5 million international migrants in the world in 1970, by this year their number had grown to 258 million, according to the International Organization for Migration (IMO), and there is no reason to believe it will decrease. Rather, it will increase, and at a growing rate. Migration is happening, whether we like it or not. Like the characters in Giuseppe Tomasi di Lampedusa’s novel The Leopard, who had to change their behaviour radically in order to cope with societal change and maintain the previous order (“Everything needs to change, so everything can stay the same”), EU member states also have to change their attitude to European migration policy in the era of migration and find new solutions together. The journey will definitely not be smooth but, rather, painful and full of obstacles and (forced) compromises—but it is inevitable.
1 E.g. in the Maastricht Treaty (Article K1), Amsterdam Treaty (Article 61) Lisbon Treaty (Article 67(2)).
2 The Dublin Convention, which entered into force in 1997 (later the Dublin Regulation).
3 European Council Directive 2003/9/CE.
4 See also “Understanding Migration in the European Union: Insights from the European Migration Network 2008–2018”, the EMN’s tenth anniversary report on developments in migration and shelter policies and their current situation at: http://emn.ee/wp-content/uploads/2016/10/Anniversary-report.pdf.
6 Frontex, “Risk Analysis for 2018”.
7 The countries are listed at: https://ec.europa.eu/home-affairs/what-we-do/policies/irregular-migration-return-policy/return-readmission_en.
8 In this agreement, signed on 18 March 2016, the EU promised Turkey help in dealing with the refugee crisis and a programme to relocate people from the refugee camps there in return for more effective guarding of the EU-Turkish border.
9 Mari-Liis Jakobson, “Rände- ja kodakondsuspoliitika aastaraport 2016”. Euroopa Rändevõrgustiku Eesti kontaktpunkti valdkonnaülevaade Siseministeeriumile (European Migration Network Estonian Contact Point), 2017. Available at: emn.ee/wp-content/uploads/2016/10/EMN-raport.pdf.
10 Denis Pinchuk, “Bike shortage stems flow of migrants using Arctic route to Europe”, 29 October 2015. Available at: https://www.reuters.com/article/us-europe-migrants-russia-norway/bike-shortage-stems-flow-of-migrants-using-arctic-route-to-europe-idUSKCN0SN2SU20151029.
11 European Commission, COM(2010) 2020. Available at: http://ec.europa.eu/eu2020/pdf/COMPLET%20EN%20BARROSO%20%20%20007%20-%20Europe%202020%20-%20EN%20version.pdf
Eero Janson, Director of the Estonian Refugee Council
European asylum policy is often controversial. Its main tension axes are pointed out in Mari-Liis Jakobson’s and Ave Lauren’s article. What should be emphasised most is the tension between values-based and domestic policy goals, which became especially apparent during the so-called migration crisis of 2015. On the one hand, Europe tries to be—and be seen as—the flagship of global humanitarianism; for example, the EU is the biggest global contributor to alleviating humanitarian crises and it also sees itself as the central guardian of democracy and fundamental rights. On the other hand, this image collides with domestic policy aspirations to limit migration with both physical obstacles and deterrence. In sum, those who are in are in, those who are out are out. This tension has also created the ever-growing wish of the EU to move all asylum processing and the overall management of migration outside its borders (so-called externalisation), which makes it easier to ignore potential violations of fundamental rights: another country, other rules.
At the same time, there is nothing wrong with such value tensions. They can even be necessary because they are what politics is based on. However, when we continue on this path, we may at some point realise with horror that by ignoring the fundamental rights we have deviated into extremes. This is why the protection of freedoms and fundamental rights must be strong and consistent, in order to balance global tendencies that facilitate establishing new borders rather than tearing them down. And to keep European humanity from becoming just an empty phrase.
A Migration Policy Without Answers
Karmo Tüür, observer
European migration policy is probably one of the most controversial topics, and writing about it ensures an attack from one side of the argument or the other—which is what makes the effort to try and tackle the subject from a neutral, academic point of view even more commendable.
One of the main problems with academic writing is that the specialist gets caught up in technical jargon, assuming that “everyone knows that”. But even when we leave aside the references to technical terms (e.g. what would a so-called “normal” reader do with endnote 11 (“COM(2010) 2020”)), the statement that “research shows that [immigration] has a considerably stronger positive effect on development than any development cooperation projects” will definitely raise some eyebrows. Let us assume that in a community of experts this is common knowledge that will make people nod their heads in agreement, but for a layman such a generalised statement would certainly require at least a reference, if not an explanation.
The somewhat free use of terms is also questionable. For example, why does “illegal migration” switch smoothly to “irregular migration”, which has a totally different meaning?
What is praiseworthy is the use of impactful literary devices. For example, “A fortress with a touch of humanism” and “making the borders porous” convey the essence of the situation very clearly and creatively.
But the highest praise will be given for not limiting this short article to merely describing the problem, but also offering a solution—“exchanging knowledge and experience and creating a platform for [comparison]” between countries that could replace the formal but ineffective pan-European policy.
The fact that the question in the title “European migration policy or migration policy in Europe?” is left without a clear answer is sad, but probably inevitable—as inevitable as the recognition at the end of the article that “… there is no reason to believe [migration] will decrease. Rather, it will increase, and at a growing rate. Migration is happening, whether we like it or not.”
Hille Hanso, freelance journalist
Mari-Liis Jakobson and Ave Lauren provide a necessary summary, since the political powers supporting path-dependence, nation-statehood and autarky often mix up irregular and lawful migration, either on purpose or by accident, thus inciting general xenophobia. In the April issue of Diplomaatia, Cas Mudde described this as the blackmailing power of far-right populist parties that has skewed the debate to focus only on the perceived negative aspects of migration, e.g. the security risks. Liberal parties have become very careful in their approach to some topics for fear of upsetting the voters. They are afraid of amendments to the law and attracting foreigners through legal migration. But it is inevitable that bold action is taken in the economic competition between countries and taking account of the demographic situation in Europe. In this competition the labour market has to be opened up to newcomers and other services must be made accessible to their families in a transparent and operative way.
Another aspect is the so-called “boat people”, irregular refugees who are considered first and foremost a security threat and a “problem”, not human capital with all its weaknesses and strengths. National policy must rely on two balanced long-term levels here: local action (we welcome into society and involve a manageable number of people in need) and action outside the country (offering humanitarian and development aid in conflict zones and their neighbouring countries). It would be wise for Estonia to offer official help through our national aid organisations in addition to international ones—this would help to increase the number of people with expert knowledge on different cultures and countries. I can say from my own experience that development aid projects have a real, tangible impact on the lives of the recipients and have created many good Estonian experts on various regions.
This article was published in ICDS Diplomaatia magazine.