The Immigration and Asylum Agenda

• Author: Gisbert Brinkmann
• Published date: 01 March 2004
• Date: 01 March 2004
• DOI: http://doi.org/10.1111/j.1468-0386.2004.00211.x

The Immigration and Asylum Agenda

Gisbert Brinkmann*

Abstract: An area of freedom, security and justice was created by the Treaty of Maas-

tricht of 1991/1993. Immigration and asylum of third-country nationals was inserted into

Title IV EC by the Treaty of Amsterdam of 1997/1999. The European Council of

Tampere of October 1999 provided a substantive input. The proposals of the European

Commission cover almost all aspects of immigration and asylum and, in line with the

Tampere conclusions, are oriented at the status of EU citizens. A common European

migration and asylum policy has been realised at an astonishing speed, though some core

instruments have not yet been adopted. During the negotiations the proposals have been

watered down and thus provide only relatively low standards,in particular as regards access

to employment, which is an important requisite for the integration of migrants.

IFrom National Sovereignty to European Harmonisation

Migration has become a key issue for countries all over the world. An estimated

175 million people are international migrants. Global demographic and economic

trends as well as security issues, to mention only a few, create a powerful incentive for

increased movement of persons. This development represents an important challenge

for all countries, whether they are countries of origin, transit, or destination. National

policies formulated on the basis of national interest have an impact on states beyond

the country directly concerned. In international public law migration had been dealt

with e.g. by the International Labour Organisation, which had adopted two Conven-

tions and Recommendations in 1949 and, as the case may be, in 1975,1and the Council

of Europe which had adopted in 1977 the Convention on the Status of Migrant

Wor kers.

The EU Member States have a long tradition of immigration, which, on the whole,

has contributed to economic growth, although its shape and dynamics have varied sub-

stantially across countries and over time. Third-country nationals represented around

European Law Journal, Vol.10, No. 2, March 2004, pp. 182–199.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Off‌icial at the German Federal Ministry of Economics and Labour.The views expressed in this paper rep-

resent exclusively the personal opinions of the author.

1Migration for Employment Convention (Revised), 1949 (No. 97); Migration for Employment Recom-

mendation (Revised), 1949 (No. 86); Migrant Workers (Supplementary Provisions) Convention, 1975

(No. 143); Migrant Workers Recommendation,1975 (No. 151); cf. International Labour Conference, 87th

Session 1999, General Survey on Migrant Workers, Geneva 1999.

4% of the population living in the EU in 2000.2When the European Economic Com-

munity was founded in 1957 the then six Member States were concerned about eco-

nomic integration, including migration of Community citizens for the purpose of

employment (now Articles 39 and 43 EC), but not of migration of third-country

nationals, which was regarded as a core part of their national sovereignty.3This atti-

tude to migration of third-country nationals changed in the 1980s when migration

tentatively appeared on the agenda of the competent ministers, although still outside

the conf‌ines of the institutions and procedures of the Community.4The Member

States (only some) could agree on the Schengen Conventions of 1985 and 1990 and the

Dublin Convention of 1990, both public international law and thus for ratif‌ication

of the Member States. The need for developing a coherent system of immigration

and for common policies results from various reasons, such as that the establishment

of a single market requires the removal of barriers not only for goods, services,

and capitals but as well as for persons, including legally residing third-country

nationals.5

The Treaty of Maastricht of 1991/1993 established an ‘area of freedom, security and

justice’ the f‌ields of immigration and asylum were covered by the ‘Third Pillar’ (Arti-

cles K et seq. TEU).6The meaning of these terms can only be def‌ined within the context

of the EU itself. ‘Area’should be understood as jurisdiction and not in territorial terms

since inter alia it concerns persons who apply for access to employment from abroad.7

The word ‘freedom’ appears in different places in the TEU and TEC such as in the pre-

ambles, Articles 2 and 6 TEU, 3 and 61 TEC, and refers to a place of liberty where

fundamental freedoms are respected; according to the Vienna Action Plan of 3 Decem-

ber 19988‘freedom’ is understood in a wider meaning: ‘It is also a freedom to live in a

law-abiding environment in the knowledge that the public authorities are using every-

thing in their...power...to combat and contain those who seek to deny or abuse

that freedom’. ‘Security’ is, according to the preamble and Article 2 TEU and Article

17 EC, sought by means of a common foreign and security policy and by means of

cooperation in crime f‌ighting and by thus meaning security from external threat; in

addition, an internal high level of safety is to be safeguarded, Article 29 TEU. The

Vienna Action Plan makes it clear that ‘security’ not only means safeguarding against

March 2004 Immigration and Asylum Agenda

© Blackwell Publishing Ltd. 2004 183

2For more detailed infomation, see EUROSTAT, Women and men migrating to and from the EU, Statis-

tics in focus, Theme 3—2/2003; EUROSTAT, First demographic estimates for 2002, Statistics in focus,

Theme 3—25/2002.

3Cf. the Immigration Consultationcases of 1987 (281,283–285, 287) Germany et al. v the Commission [1987]

ECR 245, in which f‌ive Member States challenged Decision 85/381 of the Commission setting up a prior

consultation and communication procedure on migration issues relating to third States.

4Although at their Paris summit of 1974 Heads of State and Government considered the harmonisation

of national law as regards third-country nationals under the auspices of the (then) EEC, it did not really

appear on the agenda before the 1980s.

5K. Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000), at 1;see

for further reasons: Jan Niessen, EU Policies on Immigration and Integration after the Amsterdam Treaty

(Migration Policy Group,1999), at 25.

6Some visa questions had already been dealt with in the ‘First Pillar’ (Art 100C EC).

7Cf. P. Boeles, ‘Freedom,Security and Justice for All’, in E. Guild and C. Harlow (eds) Implementing Ams-

terdam,(Hart, 2001), at 1.

8Action Plan on How Best to Implement the Provisions of the Treaty of Amsterdam on an Area of

Freedom, Security and Justice, OJ C 19/1 of 23 January 1999.