Legal aspects of the EU policy in tackling the migration crisis

Table of Content

List of Abbreviations

Introduction

1. Theoretical and methodological foundations of the study of legal aspects of the EU policy in tackling the migration crisis
1.1. Migration processes as a global problem of modernity
1.2 The notion of the illegal migration nowadays
1.3. The main reasons for migration crisis in Europe

2. Analysis of the EU existing legislation on the migration issue
2.1. The Geneva Convention
2.2. Analysis of the Dublin III Regulation on migration in the EU
2.3. The problem of the illegal migration in ''hotspots'' - Italy and Greece
2.4. Case Slovakia v. Council 2015, Judgment 2017 and migration quotas in relation to Hungary, Czech Republic and Poland
2.5. The EU Program on the redistribution of migrants: problems and achievements

3. Improvement of legal aspects of the EU policy in relation to the migration crisis
3.1. Social and political consequences of illegal migration for Western Europe and counteraction against it
3.2. Elaboration of directions for preventing the illegal migration and ways of tackling the migration crisis

Conclusion

Bibliography

Annexes

List of Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

Introduction

Widening of the EU has led to the new lines of political division in the European region. It caused a problem of contradictions in the European political consciousness, the understanding of which is being determined by the institutional complexity of the EU, which operated for a long time in several formats - the format of a common market, the format of international organizations and the format of the interstate union.

A practice of the EU political activity showed its striving in the resolution of problems, which relate to the formation and transformation of the European political consciousness, as a preservation of the unity of integration association and the credibility to the national European communities, the modernization of the European identity standards. This, in turn, has led to the formation of the idea of "Europeanism'' in the migration community, the perception of a common European foreign policy and the EU security policy in a wide European space and the support of common positions and approaches to the formation of a new European space.¹

One of the most important issues, which requires a deep analysis is a question of illegal migration. And the EU migration policy is not the exclusion, which, regardless of internal and external factors, has to be formed in accordance with the requirements of time, considering, first of all, the interests of the society and state. Under conditions of economic and political crisis, arises a problem of the imperfection of a state component of a migration policy regulation, resolution of which will entail settlement of social-political processes. The problem is also actualized by the fact that in many parts of the world military actions are taking place. It provoked a massive migrants outflow to the EU states and basically made state borders 'transparent'.²

However, a problem of the legal aspects of the EU policy in tackling the migration crisis remains unsolved nowadays. For today, scientific literature has a lack of publications that cover an issue of illegal migration and strategies of its settlement at the governmental and international levels under the EU conditions and conditions of global space.

Thus, the main goal of this master thesis is to identify the main reasons of illegal migration in the EU States, on the basis of the analysis of current EU legislation on migration issues to elaborate the suggestions on improvement of legal aspects of counteraction of the illegal migration and migration crisis.

The relevance of the research paper. This master thesis is based on a comprehensive analysis of the illegal migration problem in the EU States and its global nature. In addition, the vector of current reasons of the illegal migration was identified.

Main purposes of this thesis are:

- to determine the primary reasons for illegal migration in the EU states;
- to define the concept of "illegal migration", which reveal the content of this term;
- to consider the correlation of International Law, EU Law and national legislation of Member States in a sphere of tackling the illegal migration;

In conclusion, the author aims to answer the following questions while writing his master thesis:

- What mechanisms and forms of EU member states cooperation in the field of counteraction of the illegal migration are used and
- How migration crisis influenced the EU legal system?

1. Theoretical and methodological foundations of the study of legal aspects of the EU policy in tackling the migration crisis

1.1 Migration processes as a global problem of modernity

Migration processes became one of the major challenges of XXI century. Voluntary and forced migrations accompanied the human development throughout all existence, but nowadays the volume of migration reached its peak.³ Immigrants have become an inevitable, necessary and, at the same time, problem part of a state life. Also, they are the means of resolving a demographic and economic crisis, as well as the category of the aggravation of social, religious, political and ethnic conflicts. Apparently, the intensity of migration processes will be increasing and will require new approaches, because it is impossible to solve problems of XXI century with the methods of XX century.

The current state of things requires the evaluation of the new variants of forecasting and the resolution of the situation for implementing the proper management of migration processes. A development of processes calls into a question such traditional models of adaptation, as multiculturalism and assimilation, proving its inefficiency and the nonconformity to the present. Thus, on 11 February 2011, a President of France N. Sarkozy declared that the collapse of the multiculturalism model, having noted that France "is not going to adjust to immigrants''.⁴

A bit earlier a Prime minister of Great Britain D. Cameron made a similar statement. In 2010 a German Chancellor A. Merkel stated about the fail of multiculturalism policy and pointed out that Germany welcomes immigrants, however, they will have to adjust to German customs and study language.⁵

Changes in immigration legislation of the EU states, in particular, Newcomers Integration Act in Netherlands (1997), Act on the Integration of Aliens in Denmark (2005), Law on Immigration in Germany (2005) and the number of other determine some general components: language courses, civil courses for familiarization with the civil norms of the host country, history, values and cultural traditions, professional retraining, etc. However, it is worth to note that integration is turning into a unilateral process in which the responsibility and the obligations are placed solely on immigrants. Foreigners are forced to integrate to get the legal status and to be treated like members of society.

Modern trends, approaches and strategies at the national level sometimes show that the notion of "integration" implies forced assimilation in a host society. Obligatory undergoing of integration programs actually have particular features of coercion, but, undoubtedly, such programs are necessary for further integration of migrants in host society under the principle of balance of compromises.

Activity and modern forms of migration create new challenges for integration strategy adopted by European states. Migration policy is being considered at various levels: Supranational (EU), national and local, remaining largely within the competence of the governments of the EU countries. The implementation of common principles of integration - the introduction to a single nation with the adoption of common norms and values, and cultural diversity - is, in reality, not successful because of contradictions in approaches and the lack of effective mechanisms.

Nowadays, a search of optimal immigration and integration model continues. Current trends of the EU migration policy reflect inconsistent nature of modern democracy. It attempts to combine two opposite and, usually, mutually exclusive principles: universal and territorial, human rights and the sovereignty of the people. Growing social and economic tensions, ethnic and religious conflicts lead to the situation, when ultra-right parties come to the power of European states, which insist on limiting immigration, eviction of immigrants and the protection of their national identity. Thus, in Sweden, the "Democrats of Sweden" - the right- wing party, came to power, which took a tough stance in terms of immigrants. The popularity of the party has significantly increased, which indicates on the dissatisfaction of the population with an active influx of immigrant into the country, their remoteness from the values of European culture and unwillingness to integrate.⁶

The influence of nationalist parties has been increasing in other states, in particular, in France, Germany, Netherlands, Denmark, etc.⁷

Different views on all those issues are united with the belief in the necessity of combating the illegal migration and the implementation of migration processes managing systems. At this stage, it is recognized that it is more necessary to implement proper management of migration, rather than combating migration itself. Actions of states are not consistent: the complication of immigration legislation and the possibility to immigrate to a state, conduction of periodic legalization, which attracts immigrants, foster illegal migration giving immigrant a chance to move to a state and legalize his or her staying and activity there.

Models of integration of foreigners in the society depend on different factors, they are not universal and not equally effective. Muslim population - people from Africa and the Middle-East - constitute the main problem category, they insist on the preservation of their usual lifestyle, refusing to accept the norms of European society, unlike immigrants from Eastern Europe and Latin America, who are culturally more close. The situation around Muslim-immigrants has significantly become more complicated due to tension after terrorist acts in USA, Spain, Great Britain, Sweden.

The EU States are the particularly attractive region for immigrants. As at 1 January 2009, there were 3.18 million foreigners in the EU, which constituted 6.4% of the EU-27 population. According to different sources this figure constituted 12-20%.⁸

An interesting fact is that out from 214 million migrants around the globe, about a half are labor migrants. Traditionally, Europe was the continent of immigration and has turned into a place of immigration in the second half of XX century. Modern intensification of migration processes is due to a number of reasons, where the economic and social aspects prevail.⁹

Globalization and internationalization promote the acceleration of these processes. Exacerbation of political, ethnic conflicts, ecological danger, unevenness of economic development of states provokes and stimulates migration processes. The intensity of migration and caused problems by this show the tendency to adopting the limitation measures towards unqualified migrants and liberalization of immigrant rules for highly competent employees. The attention of the society is attracted by the tendency of the feminization of migration. Women constitute about a half of general amount of migrants. Women and children are a more vulnerable category of migrants and increasingly they become an object of human trafficking (in accordance with the UN data, human trafficking possesses the third place on profitability after the trade of arms and drugs). If to consider the IOM statistics, from the beginning of 1990th approximately 110 thousands of people became victims of human trafficking.¹⁰

The economic crisis, unemployment entailed the exacerbation of negative attitude among indigenous people towards immigrants. Thus, the question of control of target use of the assistance to refugees arises.

In accordance with the Transatlantic Trends¹¹, the majority of Americans and Europeans consider immigration as a threat rather than the advantage. According to conducted studies 65% of Brits, 53% of Spaniards, 42% of French, 39% of Germans and Dutch see a problem in immigrants and connect the deterioration of their financial position with it. At the same time, 50% of Germans act in favour of granting immigrants a legal status in contrast to Brits, Italians, and Spaniards, who are for migrants expulsion.¹²

To some extent the negative attitude is promoted by high crime rates among immigrants: so, 70.8% of prisoners in Switzerland are immigrants, in Luxemburg - 63.9%, in Netherlands 55%, in Sweden immigrants constitute 85% of those, who are convicted of rape, in Norway - 65%.¹³

Anyway, the development of regions and a great difference in the quality of life in states, social and political instability, demographic crisis and a demand for economically active population foster migration processes.

To sum up, a problem of migration and adaptation of migrants is urgent, relevant and ambiguous. In the spotlight - models, means and results of the attempts of the European States individually and the EU as a whole to find an adequate balance between the preservation of a state structure, its cultural acquisition and the inclusion in the society of persons with a different outlook, lifestyle and beliefs. Current trends and the development of the situation make it necessary to reconsider and to improve the effective political leverages for settlement the international migration processes.

1.2 The notion of the illegal migration nowadays

Illegal migration is an integral part of a well-known phenomenon and is denoted by the notion of "migration of the population". As the result, it is characterized by two features. The first is general features. They characterize all kinds of migration contained in its varieties and structural elements of these types.¹⁴ The second is special features. They are derived from the general features, however, characterize exclusively illegal migration, in particular, determine its place in the structure of migration processes. Thus, the clarification of the nature and place of illegal migration in the structure of migration processes depends on the understanding of migration as a socio-legal phenomenon, its structuring, as well as the definition of the tasks of legal regulation in this area.

The term "migration" comes from the Latin term "migratio, migro", i.e. displacement, resettlement. The scientific literature contains such explanations of the term¹⁵:

- resettlement, movement of people, ethnic groups and their parts or separate individuals, associated with a change of residence or return to it;
- movement, resettlement of the population within a state or from one state to another;
- the socio-economic and demographic process, which constitutes a set of movements made by people between countries, areas, settlements;
- movement of people across territorial boundaries or other areas with a change of residence forever or for a long period of time;
- resettlement, displacement of the population, internal migration of the population, external migration of the population from one country to another: emigration, immigration;
- movement of people, usually associated with a change of residence;
- movement of people, workers, associated primarily with changes of residence and place of work;
- migration of people is the process of their resettlement for the purpose of arrangement and employment.

The analysis of mentioned points of view shows that in most cases migration is understood as the movement of people between states or administrative-territorial formations; settlements mainly associated with a temporary or permanent change of residence, work or arrangement of life.

In that way, the main features of the migration are¹⁶:

- movement of people, resettlement, displacement of the population, that is the process;
- crossing in the process of movement state or administrative borders of territories;
- temporary or permanent change of residence or work;
- improving the socio-economic situation.

So, by the legality of stay, the migration can be legal and illegal. Legal migration means crossing international borders and staying in a country on a legal basis. Such migrants enter the country on the basis of an entry visa or other legal grounds, stay in the country for a certain period of time (if necessary, the period of stay may be extended). Illegal migration means that its subjects leave a country of their permanent residence and enter the territory of other states without official permission.

Illegal migration is considered as one of the migration kinds, which has characteristic features. In order to counteract the illegal migration more effectively, it is necessary to examine and research the characteristic signs of this phenomenon, namely the state, structure, dynamics and geography of illegal migration.

Illegal migration is also distinguished by the time of occurrence¹⁷:

a) from the moment of violation of rules of entry into and exit from the territory of a
b) from the moment of violation of rules of stay in the territory of a state, which triggers the necessity of visa extension and registration in the territory of the host state.

Illegal migration can also be characterized according to the ability of its subjects to bear administrative responsibility:

a) consists of subjects, which do not fall under administrative responsibility (due to the age or due to the state of insanity);
b) consists of subjects, which fall under the administrative responsibility.

In recent years a clear picture of a sharp increase in illegal movements and it has its reasons and explanations. Let us consider the reasons for illegal migration. Greater attention to illegal migration is caused by the emergence of the need for counteracting it as to undesirable, harmful and socially dangerous phenomenon.¹⁸ Elaboration of the strategy and tactics of such resistance is a primal organizational and legal task. The practice of solving similar problems shows that any measures can only be taken only with a clear understanding of the causes of illegal migration.

Illegal migration has the same reasons, as other migrations, but it is way more global, tragic, conflicting. And these reasons force illegal migrants to risk for the sake of their own life, the life of their families, to commit offenses for the sake of betterment of their own life positions, flight from conflicts and so forth.

The majority of migrants use the illegal form of migration as a mean of fleeing from various conflicts, which take place in a country of their permanent residence. Illegal migration is, first of all, connected with altering of immigration policy, it reduces the possibility of legal migration. Secondly, with the desire to emigrate by any means, which is associated with the hope for better conditions, and, thirdly, in some states there is a need for the workforce, which cannot be satisfied in a legal way.

Illegal migration is a complex phenomenon with interstate characteristics. Its features include factors stipulated both by state nationals of which migrants are and by states in which and through which they move.¹⁹ On this basis, the reasons for illegal migration could be represented in the form of two blocks:

a) stipulated by socio-economic and other peculiarities of a country of citizenship;
b) stipulated by socio-economic and other peculiarities of a state, to which they leave for or through which they transit.

Modern documents of the European Union define that the natural human right of "free movement"²⁰ is violated most often in the world. In its turn, it poses to scientists and legislators the problem of rethinking the theoretical definition of a "migrant", and respectively its legal status subject to the continuous respect of natural human rights for "free movement".

Notions ''illegal migration" and "irregular migration" are used as synonyms.²¹ However, the notion of "illegal migration" is usually used in official documents, when the notion of "irregular migration" is inherent to scientific researches and journalistic texts.

In the official terminology of the UN, instead of the term "illegal migration", the term "irregular migration" is mainly used, and instead of the term "illegal migrant", it is used "irregular migrant" or "undocumented migrant or alien".²² In contrast to international law, in national legislation and the EU regulatory acts, the notion of "Illegal or irregular migration" prevails.

Thus, all these differences in interpretation of the legal status of migrants cause significant problems in the activity of practical bodies and, therefore, require a specific scientific study.

1.3 The main reasons for migration crisis in Europe

In the light of the events in the second decade of XX century, the internal political situation in the EU and in the Euro-Atlantic space as a whole has suffered a significant exacerbation and there are plenty of predictions concerning its further deterioration.²³ Global, regional and local trends of world development affect the functioning of the European Community in various ways. It has long been believed that the EU should act as a guarantor of stability on the European continent, however, nowadays this integration structure is under pressure of a number of systemic risks, which destabilize integration processes within the EU and hamper its progressive development.

By systematizing the key threats and challenges to the functioning of the EU, their internal and external nature should be singled out. The main internal problems of the EU include the institutional crisis (the problem of Brexit and the EU's future development) and the economic challenges, which are partly stipulated by external factors. The key external threats include the enhancement of the security challenges in the light of the latest hybrid conflicts in the region, the immigration crisis, terrorism as a way of destabilizing the internal situation in the EU Member States.

Throughout 2015, as the result of the war in Syria, more than 1 million migrants asked for asylum in the EU²⁴, which is significantly higher than the figures of previous periods. European migration crisis, which started in 2015, is treated nowadays as "humanitarian disaster" caused by a massive influx of migrants from Africa and the Middle East, who have left their homes with a hope for a peaceful life and prosperity in the EU countries.

It is worth noting that a new massive migration flow is a destabilizing factor in the framework of a joint EU internal policy and migration policy in several aspects. It is obvious that most of the EU States were not ready for a huge migration crisis and, as the result, felt the negative impact of this process in such important systems of social response to emergencies as housing, education and healthcare. In consequence of the uncontrolled influx of refugees, states are forced to direct financial and program priorities of social integration to the temporary maintenance of migrants with a possible reduction of social warranties for the EU citizens due to a lack of funds in a state budget. Additional expenses for the satisfaction of social needs of refugees, as Germany and Austria required, can trigger substantial "political gap" or even a harsh reaction, as it has happened between local politicians in Cologne. At the same time, migration flows contribute to the rapid growth of the civil society of Europe, which provides vital basic needs of refugees, such as clothing or first aid, and consequently opens new perspectives for the European welfare.²⁵

Migration crisis, despite its foreign policy background, seriously influence the internal functioning of the EU. Thus, for the first time, it questioned the unity of European countries and the validity of the Schengen agreements, one of the cornerstones of the European integration, ensuring freedom of movement within the EU, especially for those countries that have become part of the transit route of the flow of asylum seekers from the Middle East. In addition, there is a lack of unity on the issue of immigrants' rights to claim social benefits in the EU States. Even today in the EU there is a practice of restoring the control over internal borders because of the risk of a migration crisis. The corresponding right enshrined in Article 23 of the Schengen Borders Code.²⁶ For example, Germany resumed control on the land border with Austria for the period from 11 February to 11 May 2017; Austria with Slovenia and Hungary; Denmark checks seaports with ferry connections to Germany and the limits of Danish-German lands. France, in turn, because of the constant terrorist threat, resumed control at all internal borders for the period from 27 February to 15 July 2017.²⁷

Therefore, a noticeable increase in the number of migrants in the EU creates additional security risks for these countries, imposes a significant financial burden on their social budgets, leads to radicalization of the society and an increase in extremist, anti-European sentiments, increases the popularity of Euroskeptic parties. It also updates the issues of consolidation of the efforts of the EU bodies and Member States on strengthening the external borders of the Community. In the context of the migration crisis, the European right-wing political forces point out the need to implement decisive measures aimed at limitation of migration flows. The unprecedented growth of migration today forces a number of the EU Member States to allocate substantial funds for rapid response and a special arrangement of points of reception of refugees and providing humanitarian assistance (food and medical care).

The idea of creating a network of centers for the reception of refugees was first mentioned in the European Agenda of Migration on 13 May 2015.²⁸ The main objectives of such centers are to register, identify and collect the fingerprints of asylum seekers. However, initially, the EU did not have a commonly agreed position on the purpose of these centers – if someone interpreted them as a place of waiting for migrants arriving in the EU border countries, others noted the importance of centers for the readmission procedure and the maintenance of migrants, who violated the border crossing rules.

The European Council considers centers as places of work of Europol, Frontex, European Asylum, Support Office and Eurojust. The main task of these offices is in prompt intervention and resolving the situation in the event of aggravation or disproportionate pressure on the external borders of the EU.²⁹

Maintaining the dynamics of the influx of refugees and the further escalation of the migration crisis in immediate prospects can cause even greater growth of economic expenses due to the need for funding the social policy of the EU, which is carried out from the budgets of the EU Member States and, as a consequence, the burden of the migration crisis falls on the citizens-taxpayers living within the European Union. Moreover, an increase in the number of refugees could put additional pressure on the labour market in the European countries and even significantly worsen the level of unemployment in Europe. Certainly, such a course of events will not be in favor of the EU citizens and this, in turn, causes aggravation of interethnic confrontations and deterioration of relations towards foreign migrants.

Along with the migration crisis, terrorism remains a key destabilizing external factor for the EU. The potential danger for the EU Member States, particularly France and Germany, whose migration policies are extremely imperfect and full of double standards, is a large number of Muslim migrants among their populations, which can become a tool for implementing extremist plans in Europe.

The terrorist attacks in Paris in November 2015, in Brussels in March 2016, in Istanbul in June 2016, in Nice in July 2016 highlighted the scale of the threat of terrorism, in particular, through the activities of extensive Islamist networks in Western countries that have developed over the previous decades. They demonstrated that terrorist attacks on unprotected places of a mass gathering of people and infrastructure objects are becoming a constant factor of the European reality and influence decision-making within the EU.

A large part of foreign experts explains this by the inefficiency of the EU security policy, which is determined by a number of factors.³⁰

The key factors are as follows :

- high self-esteem of the security services of individual EU Member States in their ability to ensure national security;
- too high level of democracy and liberalism in the states;
- lack of professionalism and inability of the security services of individual states and the European Union security services as a whole to counter terrorist activities in Europe;
- ignoring the reasons and consequences of previous terrorist attacks in European cities and the lack of strategic cooperation with the security services of other European States in the context of the combat against terrorism and the like.

The above-mentioned factors indicate that Brussels has become an "easy target" for terrorists and civilians. A real fight against terrorism at the domestic level requires enhanced capacity of the national security, as well as a reconsidering of the EU's counter-terrorism policy. One of the key steps in this direction is the creation of a new European counter- terrorism centre (ECTC), which will work on the basis of Europol institutions dealing with the legal order in the EU.³¹

In addition, to counter the terrorists, the Ministers of Defense and Foreign Affairs of the EU Member States in 2016 agreed on a plan of defense and security of the EU.³²

However, the EU stresses – it is not about creating a European army, NATO remains the only defender of Europe.

A key challenge for the EU in the near future is a new format of relations between the United States and the Russian Federation. Consequently, officials in the defense sector of NATO and the EU warn U.S. President D. Trump against the improvement of relations with the President of the Russian Federation V. Putin. The point is that the EU urges the U.S. to remain "a fortress" of the European security, primarily in the context of protection against Russia's hybrid challenges. The further development of the European security system and the alignment of forces in the international arena depends on the position of D. Trump.

In order to address the urgent problems and both internal and external threats, as well as to prevent them, the leaders of the European countries in March 2017 (on the eve of Britain's withdrawal from the EU) adopted the Rome Declaration, which identified key areas of work for the next decade.³³

Among them are the economic development, security and leadership on the global stage. The Declaration, which was signed by the leaders of 27 countries (without Great Britain), the leaders of the European Parliament, the European Commission and the European Council, contains four main points that will be addressed in the coming years, and which response to current challenges in the near future³⁴:

- safe and reliable Europe. The Declaration identifies priorities for the security of all citizens, mainly in the fight against terrorism and organized crime; for free movement within protected external borders. It is noted that effective, responsible and sustainable migration policies need to be developed and implemented, while respecting international norms and rules;
- prosperous and sustainable Europe. It goes about the development of the association, which guarantees economic growth, competition and innovation; a common market effectively operates; conditions for investment and growth of jobs are provided. The priority is technological changes, structural reforms, especially, the emphasis is on the safety and accessibility of energy, clean and safe environment;
- social Europe. In the EU, economic and social progress has been prioritized, taking into account the diversity of national systems and the key role of social partners, trade unions, equality between women and men, and the rights and equal opportunities for all, including in education sphere. In such a unification, States will jointly combat unemployment, discrimination, social exclusion and poverty; cooperate to preserve cultural heritage and promote cultural diversity;
- strong Europe on the international arena. The Declaration proclaims that further development of the existing partnership of the Union and formation of new ones is crucial; strengthening of common security and defense, in particular in cooperation and complementarity between NATO and the UN; the global role of the EU is emphasized, primarily the values and protection of human rights, free and fair trade, a positive global climate policy is encouraged.

Thus, it should be noted that a number of internal and external threats facing the European Union today (among them the aggression of the Russian Federation, the migration crisis in Europe, a series of terrorist attacks in European cities, unpredictable policy of D. Trump regarding the European security system³⁵, strengthening the position of left and right- wing political forces in European countries, Brexit and its consequences, in particular the threat of the "Domino effect" in other EU Member States) forced the leaders of European countries to be more consolidated regarding a common vision of the future of the European Community, and to take the responsibility for perspective directions of the EU development.³⁶

The Rome Declaration of 2017, signed at the celebrations of the 60th anniversary of the 1957 Rome agreements, could become a document, whose implementation will not only become a strategic basis for the formation of an adequate response to the urgent internal challenges of the EU's development but also strengthen the positions.

Unification on the international arena will consolidate the European States in the fight against external threats. Therefore, it is necessary to consider the study of internal and external factors as promising and to consolidate the positions of political elites and public opinion in the EU Member States on the future of this integration structure.

[...]

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