July 16, 2003

This briefing was part of MPI's European Visitor series: 'Migration Policy, Politics and Processes in the EU.' This series is sponsored by the Delegation of the European Commission in Washington DC, and allows European practitioners and scholars to visit MPI for one week. Today's presentation by Mr. Christopher Hein, Director of the Italian Council for Refugees, and chair of the Executive Committee of the European Council for Refugees and Exiles (ECRE), addressed the asylum and immigration agenda of the Italian Presidency of the European Union (July-December 2003).

Joanne van Selm, Senior Policy Analyst at Migration Policy Institute introduced Christopher Hein. Dr. van Selm explained that, in the context of the 'revolving presidency' of the EU, Mr. Hein would provide insight to the historical and current policy development on asylum and immigration in the EU, and Italy's plans for its six-month term.

Mr. Hein thanked Dr. van Selm and explained that he would give an overview of where things currently stand with regard to the harmonization of asylum and immigration policies, Italy's specific role and program, and finally provide a forecast for the future.

Historical Overview

Mr. Hein explained that Italian immigration policy is largely tied to that of the whole of Europe, and therefore could be partially explained through the recent history of European immigration policy.

The Schengen Agreement in 1985 was the first step in Europe's process of harmonization. This agreement - named after a town in Luxembourg where it was signed, aimed to create a space of free movement between the five original signatory countries: Germany, France, the Netherlands, Belgium, and Luxembourg. To achieve the goal of open internal borders, it was clear that firm and consistent rules regarding asylum, visas, control of external borders, drugs and arms transfer would need to be established among these countries.

The Schengen Convention of 1990, implementing the first agreement, established those rules along with the creation of the Schengen Information System, a centralized database on irregular foreigners, so that information could be easily shared. These initial steps provided the benefit of free movement within part of Europe, but also introduced the drawbacks of securing external borders. A form of discrimination against all non-EU members was a resulting risk. Step by step, almost all other member States of the European Union - except U.K. and Ireland - joined the Schengen agreement during the 1990s.

The London Resolutions of the Council of Ministers of the Union of 1992 made additional steps towards these goals by defining new concepts in the field of international refugee protection, with the aim of accelerating asylum procedures and reducing numbers of asylum seekers: Governments were advised to introduce rules on safe countries of origin, third countries of asylum and manifestly unfounded cases into national legislation. Inter-governmental cooperation on immigration and asylum was then sanctioned by the Maastricht Treaty, in force since 1993. The limitations of such non-binding cooperation between States became apparent during the 1990s crisis in former Yugoslavia, which resulted in an influx of asylum seekers from Bosnia, Serbia, and later from Kosovo in 1998/99. These mass population movements demonstrated that the loose involvement of member states and current agreements between governments were insufficient. In response, the Treaty of Amsterdam that entered into force in May 1999 incorporated a Community approach to immigration. Article 63 specifies that common European asylum procedures, refugee definitions, common rules on subsidiary protection, and conditions for reception of asylum seekers as well as common conditions on entry and sojourn of immigrant labor and of foreign students should be established during a period of five years, before May 2004. This process is now under way, resulting in a series of Community directives binding for the member States.

Impact of September 11

Following the events of September 11 harmonization shifted gear, as issues of security were raised as primary concerns. New language adjusted the priorities of a previously held meeting of the European Council in Tampere, Finland. In October 1999, this meeting spoke of immigration with open language towards third country nationals who arrived in the EU for work or study. This meeting spoke highly of the Geneva Convention and reinforced governmental commitment to defining refugees and abiding by the principle of non-refoulement. Organizations such as ECRE, Amnesty International and other NGOs were pleased with the outcome and feelings expressed in the 1999 meeting. Late in 2001, however, within the Amsterdam Treaty's program of creating 'an area of freedom, security and justice', security aspects were stressed, especially with regard to refugee arrivals. Legislation in member States tended now to restrict rights and freedoms of persons from third countries, and the language of the draft directives of the Community shifted towards restriction of rights, along with increasing margins for individual States with respect to national legislation. In addition, enormous changes in financial assistance for border control were made. This included funding to countries such as Morocco, Tunisia, Turkey, and most recently, Libya.

The second phase of European harmonization will begin with the establishment of a new EU Constitution that will replace the Amsterdam Treaty. This will move towards establishing a single European asylum procedure, a common refugee status definition and the same level of rights for asylum seekers, refugees and immigrants. . There are a number of challenges that will presented in this new phase, the most significant may be the rapid jump that will be made from 15 to 25 member states of the EU, by May 2004. In previous periods, only two or three new members were added at one time. Furthermore, of those States that will be added by May next, many belonged until 13 years ago to the region under Soviet influence. To mitigate the effects of these drastic member state changes, it has been decided that citizens of the new countries will, during a transitional period, not yet allowed full freedom of movement and establishment in the Union's territory, until 2006.

Italy's Role

When examining Italy's role within this process, the scope of the Presidency is limited in its influence on the harmonization process. There is not much flexibility any Presidency will be allowed with regard to immigration and asylum policies: the legislative process (discussing directives) is spilling over from one Presidency semester to another. Greece, for example, led the negotiations on a Commission proposal for a Directive on refugee status and subsidiary protection, which suggested that persons not covered under the Geneva Convention, but who would face humanitarian crisis or violation of human rights, could not be returned to their country by force. This directive, however, is currently being blocked by Germany in a "one verses fourteen" opposition. The principle established by the Amsterdam Treaty regarding all justice and internal affairs that all 15 Governments have to agree has the result that the Italian Presidency cannot move forward this directive until Germany changes its view, or a system of qualified majority vote is introduced.

Italy's own laws on immigration and asylum have been changing in recent years. The new Bossi-Fini Law of 2002, for example, makes adjustments to both immigration and asylum practices. This law has abolished effective legal remedy against deportation, and also articulated that immigrants are only allowed in the country on the basis of pre-established work contracts and within a yearly immigration quota. Immigration is again viewed under a "guest-worker" concept, as it was the case in Europe in the 50s and 60s. In addition, drastic changes were made to asylum procedures, including a provision for a kind of detention during the - extremely short - procedure for all asylum seekers who enter the country illegally.

On the other hand, the law allowed for entailing a new wave of regulation for foreigners residing in the country illegally, on the basis of a concrete job offer presented by the employer. More than 700,000 applications were filed, demonstrating the vast number of third country nationals illegally residing and working in the country. Probably, 90% of these will be granted temporary residence. Temporary residence will not extend longer than a work contract and must be renewed every two years, until more permanent status is achieved after 6 years.

Immigrants arriving illegally by sea, also referred to as "Mediterranean boat people", are one of the key issues to deal with in Italy. Today, the main route for this form of migration is to travel through Tunisia or Libya from sub-Saharan Africa. Those traveling from war-torn regions of West Africa, walk to the North-African coast, to then pay exorbitant fees to smugglers. Italy has exemplified the importance of working with third countries (such as Albania, and recently Libya) by establishing a technical agreement with these countries to strengthen coast guards and, in the case of Libya, patrols along the vast 2,500 km desert border to the South (the first authorized break with the embargo on relations with Libya). Such financial aid and advice does not normally include the establishment of reception centers and provisions for development aid.

Future trends and debates

The present asylum debate in Europe goes beyond the terms of the Amsterdam Treaty and includes more and more subjects like cooperation with third countries from where asylum seekers originate or transit through; the processing of asylum seekers outside the territory of the Union; European resettlement programs, and in general, modes of safe and protected arrival. The debate is, on the one hand, linked to the results of the UNHCR global consultations on asylum and refugees, the Agenda for Protection and the concept of "Convention plus"; on the other hand to proposals made by the British Government earlier this year that envisage the immediate returning of asylum seekers to "protected areas" to be established in third countries, preferably in the region of origin, under international administration. These proposals, not shared by most of the other EU Governments and heavily criticized by UNHCR and NGOs, have anyhow provoked counter-proposals to address the question of massive illegal arrivals of asylum seekers and other foreigners, linked to the question of trafficking and smuggling of persons. In this frame, the Italian Presidency has embarked on the issue of safe and protected arrivals of persons in need of international protection, as proposed by the European Commission in a communication of last June. The Italian Government, in agreement with the Commission and in collaboration with the Italian Council for Refugees, is organizing an international seminar on October, the results of which will be presented to the Council later this year.

A large European resettlement program, as well as common rules for processing asylum claims presented at diplomatic representations in third countries, and the issuance of "Schengen protection visas" may well be a result of the harmonization debate. Italy is and will be in the forefront of this discussion, being largely concerned with the phenomenon of boat people and of secondary illegal movement of people towards other countries. It is important that both the arrival of persons in need of protection as well as the entry of labor immigrants is governed in a common system that balances security, justice and freedom.

Questions

Following this succinct presentation by Mr. Christopher Hein, time was allowed for questions.

Q: Given the changing composition of refugees in Italy, how has that altered attitudes toward Italian refugee policy?

A: There has been a change in the origins of refugees in Italy over the last years. In 1988-89, Kosovar refugees were widely accepted because they came from nearby, there were widely known violations of human rights upon this group and therefore people were well-prepared to receive them. Now, however, acceptance is not so clear. In recent months, and namely after the Iraq war, most new asylum seekers come from African countries: Western Africa, Horn, Congo etc. Although it is clear that many of those migrating currently need protection, the situation in their countries of origin and the plight of Africans is relatively unknown to Italians. This results in a confusing situation. These groups are referred to as 'clandestini', without distinction between illegal migrants and persons in need of protection. The risk of immediate deportation and of unjustified negative decisions on asylum claims has clearly increased.

Q: Does Italy expect labor migration to occur from Eastern Europe to Western Europe? And if so, how will this affect attitudes?

A: Labor migration from East to West (for example from countries like Poland) is actually not expected to be too extensive. With the establishment of the interim time of two years before free movement of citizens of the new member States would be allowed it is expected that the vast differences between East and West might be minimized, and that the economy in Central Europe would improve. The situation is different with regard to further East countries like Ukraine and the Caucasus: there is already today a considerable migration movement from these countries towards Italy and other Western-European countries. This is likely to continue.

Q: In the draft constitution, how much of future asylum law is directly addressed?

A: In the draft constitution there is mention of asylum and protection, which we see as very positive, and hope the text remains unchanged in this part. The chapter on asylum is quite detailed, and would allow for a real common European policy.

Q: In the United States, focus on immigration policy for foreign students is really driven by security concerns. Within Italy, what drives this issue from the presidency?

A: The new debate surrounding foreign students is not driven from the standpoint of security. Instead it seems to be driven by the need for common rules through the EU. Students are allowed to move freely within other EU countries for up to 90 days. With admittance of students varying by standards in each country, there is a need to have universal standards. Therefore, these interests are really need driven.

Q: What are the reactions of big business and industry to immigration policy and the availability of labor?

A: Generally, businesses feel that more immigrants should be admitted to meet the needs of the labor force. Currently there are only 20,000 admitted as regular workers per year, without counting an additional quota for seasonal workers. Instead, employer organizations claim a need of yearly 200-280.000 workers in order to meet the actual requirements. In addition, businesses would like to see current restrictions and regulations eased, such as the requirement of businesses to provide housing to immigrants. Businesses feel that providing a housing stipend would have many more benefits. The housing requirement currently in place, ties immigrants down, and does not allow them to move to areas with the greatest employment needs. Italians themselves are not willing to move to these areas. Therefore with a housing stipend, immigrants could locate their housing and it would increase mobility and thus motivate the economy.

Q: With the focus of the presidency on combating smuggling through alternative immigration channels, I don't see anything that could be proposed that would be of the same proportion as what smuggling can accomplish now. Do you see Europe coming up with a solution, an organized policy, to combat this issue that might be of the same scale?

A: This is of course a difficult question. In actual numbers, the answer is no. It is unlikely that such a plan could be proposed. When speaking of strategic concepts, however, rather than actual impact, there is potential for influence. The establishment of a 'fortress Europe' that makes it difficult for third country nationals to enter the EU or receive a visa is a harmful concept. As long as third country nationals believe it is impossible to obtain a visa or enter the EU, then smugglers will continue to be used. When you start with programs with limited statistical effect, but which address this doubt and open the possibility, conceptually, of coming to the EU in an ordinary way, combined with open labor and student quotas, there should be an impact on the longer run. Travel through smugglers is not only extremely costly but carries also serious risk for survival. This may impact individual choices to travel by boat or lorries, or to travel thousands of miles to Libya or other intermediate countries, when other options might be available.

Q: What is the role of IOM in the migration management process? Recently they have agreed to work with asylum seekers and returnees.

A: IOM has fewer limitations than UNHCR, which allows them to move in a freer way with respect to the return of rejected asylum seekers. The UNHCR, on the other hand, insists more upon voluntary return. IOM appears to be evolving as a useful instrument of governments. Furthermore, it is easier for IOM to develop a common approach to forced as well as to voluntary migration through specific projects facilitating migration through counseling, preparative courses and return programs. But certainly, IOM cannot substitute for the prominent role of UNHCR as a UN protection agency.

Q: What is the role of Italian NGOs for advocacy, in how they lobby states?

A: The role of Italian NGOs is divided between those which are Church-linked, and those which are not (despite collaboration). Under the present Government, the Church-linked NGOs have easier access, given the current center-right catholic force in the governmental coalition. In general, all NGOs have lobbied against the Bossi-Fini law of last year, challenging the restrictions of basic rights. All NGOs lobby for a comprehensive law on asylum that would implement a generous right to asylum in the Italian Constitution of 1948, which wasactually never inacted.

Margins for influencing governmental decisions are quite limited under present circumstances. There is no tradition and no real willingness among political parties now in power to consider NGOs as partners. Also for this reason, NGOs in Italy act through European-wide networks in order to lobby decision-makers at the Union level.

Joanne van Selm thanked those in attendance and Mr. Hein for his insights.