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Abstract
The consolidation of immigration and asylum as security concerns on the European Union (EU) legislative agenda has been a recent, but steadfast, phenomenon within European integration. To be sure, the European heads of state and government have repeatedly asserted the added-value of European cooperation in these two fields vis-à-vis third countries even before formal competence was extended to the supranational institutions in 1999. This paper will show that the formation of the external dimension of European asylum and migration cooperation has been in the making since the early 1970s and did not originate as the security problematique as it is now conventionally perceived and articulated. It will be argued that the evolution of European asylum and migration cooperation can be explained as the outcome of converging external and internal pressures for change (fluctuation in migratory flows and policy failures). However, a distinct security discourse emanated from these developments and has been re-embedded into the legislative agenda by the political actors – EU interior ministers – who dominate the decision-making process for asylum and migration measures containing an external dimension. Given that the Lisbon Treaty provisions, if and when they do come into force, did not propose any changes to the legislative procedure for such measures, the current state of play is likely to persist.
Notes
1 The EU officially came into existence after its member states signed the Treaty on European Union (TEU), also referred to as the Maastricht Treaty, in 1992. Before 1992, it was variably referred to as the European Community (EC), European Communities or European Economic Community (EEC) depending on the policy area and treaty in reference. The 1957 Rome Treaty established the EEC, one of the three European Communities. The Maastricht Treaty changed the name of the EEC to EC in an attempt to differentiate existing cooperation from defence and police cooperation. To avoid confusion and for simplicity, in this article I will use ‘EC’ to refer to European cooperation prior to 1992 and ‘EU’ for post-1992 cooperation.
2 Rush Portuguesa was a construction company that brought its Portuguese workers to France to fulfil a contract, which took place prior to Portugal joining the EC in 1986. In so doing, the French authorities argued that Rush Portuguesa violated French migration law because as non-EC nationals the workers would have been subjected to the ordinary procedure for labour migration. In its ruling the ECJ opined that article 59 (in conjunction with articles 60 TEC and 215 and 216 of the Accession Act) must mean that Rush Portuguesa was authorized to bring its Portuguese employees to France; but these workers must leave when the job was completed (ECJ, Citation1990b).
3 Article 118 TEC gave the Commission competence to promote closer cooperation among the member states in the social field (i.e. employment and labour law).
4 They are the UK, Germany, France, Denmark and the Netherlands.
5 The five states asserted that the decision should be rendered non-binding because the Commission failed to consult the Economic and Social Committee prior to its adoption. Article 118c TEC states that, ‘Before delivering the opinion provided for in this Article [with regards to all actions in the social policy field], the Commission shall consult the Economic and Social Committee’.
6 These member states contended that, since migration was outside of the social field, the decision gave the Commission competence to monitor the conditions of entry and residence of non-EC nationals (ECJ, Citation1987, para 34).
7 The Court overturned nearly all of the objections from the five member states, but it did annul the Commission decision on the basis that its current formulation implied that the Commission possessed the authority to decide outcomes of proposed consultations. According to the ECJ, the Commission ‘cannot determine the result to be achieved in that consultation and cannot prevent the member states from implementing drafts, agreements and measures which it might consider not to be in conformity with Community policies and actions’ (ECJ, Citation1987). However, the significance of the case was not its annulment because the Commission adopted an amended decision, with minimal changes to its wording, in 1988 without incident (Official Journal L183, 1988). The importance of the outcome was the rejection by the ECJ that external migration regulation is solely a national competence.
8 They were Germany, France, Belgium, the Netherlands and Luxembourg.
9 A concept introduced by the Single European Act and refers to the free movement of persons.
10 Whilst the focus of this article is placed on explaining the origin of the ‘external dimension’ of AFSJ and how security concerns came to dominate its developments from an institutionalist perspective, it should be noted that a parallel institutionalization process has been taking place at the national level. However, different dynamics are at work there; for example, party competition and judicial constraints. For an excellent recent contribution, please see the Journal of European Public Policy (issue 3, 2008). Yet one should not simplify the effects of national and EC/EU policy making as unidirectional because this may imply that political actors are passive recipients when, in practice, they are dynamic.
11 This figure is six times the current population of Luxembourg and a third of the Belgian population.
12 The Frontiers Convention sought to establish common standards regarding the issuance of visas and the conditions under which all persons would be permitted or refused entry into the EC.
13 Whereas Spain wanted to exclude Gibraltar from the arrangements of the Frontiers Convention, Britain insisted on it being included; their differences were rooted in the historical conflict over the sovereignty of Gibraltar. The consensus needed for the Frontiers Convention to be adopted ensured that one of the most critical pieces of legislation required for implementing free movement provisions was not in place as the deadline of 31 December 1992 approached.
14 The EU has also adopted two Council directives concerning long-term residents and family reunion under the Tampere agenda that can be seen as ‘progressive’ in that a set of rights and obligations to integrate were codified for these third country nationals. I have excluded these two measures from the discussion because they address a very different group of migrants, namely those who are already in the EU or those who have the strongest potential to do so. Given that the majority of third country nationals who may wish to immigrate to the Union does not fall into either category, it is more pressing that we examine those adopted EU measures that aim to create the possibility for allowing migrants to enter on a temporary basis to acquire vocational or professional training, and to be employed.
15 Moreover, the Commission had already stressed the need to assess the state of affairs in sending countries in its 1994 Communication on Immigration and Asylum Policies (European Commission, Citation1994), which was acknowledged by the Austrian Presidency. The Commission had argued in the Communication that it was essential to ensure that the EU had access to ‘accurate information on current migration patterns and likely future trends’.
16 The Commission did table a proposal for a Council directive on ‘the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities’ as part of the Tampere programme (European Commission, Citation2001). However, the member states failed to reach an agreement concerning its contents after three years of intense negotiation and the Commission withdrew the proposal in March 2006.
17 They are Belgium, Germany, Spain, France, the Netherlands, Luxembourg and Austria.