The UK in the EU

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Asylum, Illegal Immigration & the European Union


Since the end of the 1980s there have been unprecedented numbers of people seeking to live and work in EU countries. Estimates vary but between 350,000 and 500,000 illegal immigrants enter the EU each year; some will have entered legally but overstayed their visas others will have gained entry with forged documents or through people trafficking. As no one knows how many illegal immigrants ultimately return home, the estimated population of illegally present migrants in the EU is somewhere between four and a half million and eight million people.

The causes of this problem include the break up of the former Yugoslavia, civil wars and disorder in other parts of the world and the desire to achieve a better standard of living. But they also include the demand for immigrant labour in a European Union whose population is ageing and in many Member States ceasing to grow. The EU has had to develop a response to the problems of growing illegal immigration and the parallel growth in asylum applications because these problems cross national boundaries and cannot be effectively handled by nations acting alone.

There is considerable confusion about the interaction between national policies on asylum and immigration and the role of the European Union. The structure for handling these issues is complex and decision-making is split between the Member States and the EU. In simple terms, the countries that are part of the Schengen Convention (see below) operate a single system of immigration controls for third country nations while the UK, Denmark and Ireland retain their own rules for third party nationals.

Most EU Member States need to co-operate with one another on these issues because they are bound by the Schengen Convention which abolishes cross-border formalities among them (Iceland, Norway and Switzerland also participate in Schengen and new Members since 2004 will join in due course). The countries involved have common procedures applying to third country nationals wishing to enter the EU and have agreed a range of measures designed to ensure the security of the common external border. These are necessary because any migrant getting into one Schengen country, legally or illegally, need show no documentation to cross into another (although non-EU nationals have to declare their status).

The UK, Ireland and Denmark have retained their own border controls in whole or part but participate in parts of the Schengen Convention work. The UK has a strong interest in close co-operation with the rest of the EU, by agreement, so that other Member States do not pass their problems on to us (cf Sangatte) and so that we work together to address what has become a problem on a global scale.

It is important to recognise that British media coverage tends to conflate four separate issues into one – "asylum and immigration". These four issues are:

· asylum;

· illegal immigration, including people trafficking;

· legal migration;

· free movement of workers under EU law.

Each of these issues is considered in detail below.


People may seek asylum under the 1951 UN Convention on Refugees (the Geneva Convention) if they have a well-founded fear of persecution. The number of people seeking asylum in the UK (as in the EU as a whole) has risen dramatically over the last 25 years. In the UK, in 1979, it was about 1,500 people a year; a decade later it was over 15,000 annually. It peaked at almost 9,000 a month in the autumn of 2002, has since fallen sharply and is now usually less than 2,000 a month.

Reducing the number of claims for asylum requires a variety of different approaches. Where the cause of people movements is suffering in their own countries, we have to work with that country and through organisations such as the UN and the EU, to deal with the causes. Since the reduction of tension in the Balkans, partly helped by EU action, most refugee movements do not originate in Europe but in regions such as Africa, where they are triggered by civil wars and economic deprivation. Individual countries also need to ensure that their own procedures and practices deal swiftly with claims for asylum and can effectively remove failed applicants from the country. Finally, but critically, co-operation with other countries to control movements of refugees and economic migrants is essential.

The European Union is one important vehicle for co-operation to deal with asylum-seekers. It is in the UK’s interests that we use the EU because by doing so, we can ensure that all Member States apply the same rules and would-be asylum seekers are thus prevented from exploiting differences between countries. All our nearest neighbours are EU countries – many asylum seekers have to come through those countries to get to the UK. Without co-operation with other EU states, we would find ourselves (as we did in the recent past) dealing with refugees who had been passed from country to country before they ended up in Britain.

Article 63 (1) of the Treaty establishing the European Communities requires the Council to adopt measures on asylum in accordance with the Geneva Convention. The EU has gone further by agreeing that the Member States should establish a Common European Asylum System by the end of 2010. Such a system would ensure a level playing field across the EU for all asylum applicants thus bringing to an end so-called "asylum shopping" whereby would-be asylum seekers move through several countries seeking out the one most likely to accept them. A series of directives have been agreed as part of this plan and the United Kingdom has chosen to opt in to them. They are:

· the asylum reception conditions directive – this requires Member States to provide basic support to asylum applicants, including ensuring they have a standard of living adequate for their health; this directive came into force in February 2005; it continues the UK’s right to refuse or to withdraw support, it prevents access to employment for up to 12 months; it enables the UK to use detention and/or accommodation centres for refugees;

· the asylum qualification directive – introduced common definitions of what a refugee is, using the Geneva Convention, and it established what their rights are; it came into force in late 2006; its purpose is to ensure that all EU states agree on what a refugee is and treat them in the same way – thus deterring "asylum shopping";

· the asylum procedures directive – this will establish minimum standards in Member States for the granting and withdrawing of refugee status; it will come into force in December 2007, and (for the part relating to legal advice for asylum-seekers) December 2008.

Existing measures to combat economic migration/false asylum applications include enabling all asylum applicants to be finger-printed (known as Dublin II and Eurodac). An EU database of these fingerprints is maintained, which enables those who have travelled improperly from another Member State to be returned there. Around 200 applicants per month are returned by the UK to other Member States under this scheme.

Further EU measures to implement the Common European Asylum System have been proposed in a green paper published by the Commission in July 2007. The paper poses many questions about what measures are needed to tackle failings in the existing procedures but it is likely to be some time before further legislation is proposed.

The UK Government chose to opt in to the measures described above because they establish UK practice as EU law. The UK could opt-out of future asylum measures if it wanted to because it has – under the Amsterdam Treaty – a general right to opt out or to opt in to measures concerning asylum, immigration and border control. The use of QMV for asylum measures, agreed at Amsterdam in 1997, is to the UK’s advantage because it prevents one country from blocking measures that we want. Our general opt-out is unaffected by the QMV. This ability to opt-out will be retained under the new Reform Treaty.

It is sometimes suggested that the UK should withdraw from the Geneva Convention. That would be unprecedented – no state has ever withdrawn from the Convention, an agreement signed by 140 countries. In any case this Convention is already in the EC Treaty (as mentioned above) so withdrawal would be inconsistent with our membership of the EU. .

There is a great deal of confusion between the Geneva Convention and the European Convention on Human Rights. Both are mentioned in EU law but neither convention was drawn up by the EU. As a member of the EU, we are required to adhere to the values of ECHR – as set out in Article 6 of the Treaty of European Union.

Renegotiating existing EU asylum measures would require either the consent of other Member States, consent they would be unlikely to give or the even more incredible decision that all EU states would withdraw from the Geneva Convention on Refugees.

Illegal Immigration

Illegal immigration from outside the EU is a matter for Member States to deal with. The UK works with other EU states to tackle it because the line between asylum seekers and illegal immigrants has become blurred. Part of the difficulty derives from human trafficking. In December 2005 the EU adopted an action plan to counter human trafficking. This will ensure a more co-ordinated approach to what is a global problem through endorsement of the UN Protocol on Human Trafficking and common approaches to the problem. There will also be joint efforts to tackle the problem at source, with information campaigns in other countries, a dialogue with the civil aviation sector to get better co-operation from airlines and greater sharing of intelligence.

The EU has been seeking readmission agreements with third countries in order to overcome the unwillingness of third countries to take back their nationals who have entered the EU illegally; such agreements have been concluded with Albania, Hong Kong, Macau, Russia and Sri Lanka. Negotiations continue with other countries and provisional agreement has been reached with Serbia in 2007.

The ease with which illegal immigrants find work in the EU has been identified by the Commission as a major factor in encouraging illegal immigration. It published proposals in May 2007 to tighten the law concerning the employment of illegal immigrants by requiring employers to make checks before hiring a third country national and proposed that several aspects of the employment of illegal immigrants should be made criminal offences including repeatedly hiring illegal immigrants.

Legal Migration

Much of the contemporary British concern about immigration actually derives from the number of people who enter the UK quite legally. This type of immigration is governed by UK law and it is for Parliament to decide how many people to admit and in what circumstances. Issues such as arranged marriages are not a matter for EU law or the Geneva Convention.

Free Movement of EU Workers

The final immigration issue that gets caught up in this debate is the free movement of workers within the EU. This applies to the citizens of EU Member States and not third country nationals who happen to reside in an EU country. The free movement provisions go back to the original Treaty of Rome and have proved popular with the large number of British citizens who have chosen, for example, to move to France or Spain.

The Accession Treaty allowed the UK to have a transitional period before full free movement would come into operation with the 10 new Member States who joined on 1 May 2004. The UK Government decided not to take up that option because of the shortages of skilled labour in some sectors of our economy, notably, construction, dentistry and plumbing. Citizens of Cyprus and Malta were given complete freedom of movement immediately but the Government said that people from the other eight new Member States should register before taking up employment.

Between 1 May 2004 and 31 March 2007 630,000 people from the eight countries have registered under the Government’s Worker Registration Scheme (some of these had probably been present illegally in the UK before 1 May 2004). This figure does not include self-employed people. The majority of the workers registering have been Polish (65 per cent). Claims for social security benefits have been restricted by Government rules and about 80 per cent of applications for income-related benefits have been refused. Similarly tight rules cover access to social housing. Statistics for the period May 2004 to 31 December 2006 show that just 0.06 per cent of local authority lettings had gone to nationals from the eight accession states (that was 235 lettings).

The Government decided that workers from Bulgaria and Romania, when those countries joined the EU in January 2007, would during the transitional period need a work permit unless they were planning to work self-employed. In the first quarter of 2007, 8,000 Bulgarians and Romanians were granted work permits and a further 2,400 came as part of the seasonal agricultural workers scheme.

A survey carried out for Manpower, the recruitment company, in 2005 found that the bulk of accession state nationals were working in areas of high employment and in sectors of the economy where labour was in short supply.

Prepared January 2006; revised September 2007

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