The Hague Program Reflects New European Realities
Creating common immigration and asylum policies for the European Union has been and continues to be a long, slow process. It is full of milestones whose measurable impact can appear quite insignificant considering media coverage and public frustration on various aspects of migration-related issues.
Furthermore, the policy documents on which the EU has managed to agree since 1992, when the EU first decided to cooperate on migration and asylum issues, have generally taken a minimalist approach. This has meant that few, if any, changes have been necessary in individual Member States to put new community laws into effect. Also, it often means a new EU law can allow some states to become more restrictive — although the EU law is intended only to set the minimum level of asylum or immigration practice permitted.
In November 2004, the European Union set a new and ambitious five-year course called the Hague Program to strengthen freedom, security, and justice within the 25 Member States of the EU.
This program is effectively the EU's agenda for the further development of migration and asylum-related policies. The European Council, composed of the heads of government of the 25 EU Member States, decided on this program. The document contains proposals and deadlines for the areas in which the Council would like to see policy decisions. This makes the program more of a "wish list," and not a detailed policy document.
Turning the agenda items into policy reality will be the job of three bodies: the European Commission, which is the EU's executive branch; the Justice and Home Affairs Council, which includes the 25 ministers responsible for immigration issues in each Member State; and the European Parliament, whose members are directly elected every five years.
The Commission will need to draft and issue proposals, submitting them to the Justice and Home Affairs Council and the European Parliament, which together hold the decision-making power. Previously, only the Justice and Home Affairs Council held this power.
A similar working pattern was involved in the completion of the Hague Program's predecessor, the Tampere Program, which is notable for having produced the first set of legally binding EU-level agreements on asylum: temporary protection for persons displaced by conflicts; a common understanding of refugee status and "subsidiary" protection; minimum procedural guarantees; minimum conditions for the reception of asylum seekers; and a regulation on deciding which Member State is responsible for assessing which asylum claim.
The Hague Program specifically aims to improve the ability of the EU and its Member States to do the following:
- guarantee fundamental rights, procedural safeguards, and access to justice
- fight organized crime
- repress the threat of terrorism
- provide protection to refugees
- and regulate migration flows and control the external borders of the Union.
Why the Hague Program is Significant
Because asylum and migration have become increasingly political and controversial, finding a future policy direction for the enlarged EU has required careful negotiation. In this context, the Hague Program was a major achievement for the Dutch Presidency of the EU.
One of the defining characteristics of the Hague Program is its timely emphasis on the threat of terrorism. At the same time, migration issues are prominent. Importantly, the program states clearly that "international migration will continue." The agenda it outlines will likely help the EU better deal with the effects of migration within a new security context.
The Hague Program's subtitle — "Strengthening Freedom, Security and Justice in the European Union" — emphasizes the goals of making the Union stronger and providing greater civil liberties for its citizens and those who live in the EU-25.
In addition, the Hague Program will build on the Tampere Program's achievements by monitoring and evaluating the ways in which Member States transpose EU-level directives and regulations into national legislation; it will also track how Member States implement these new laws.
How the Hague Program Approaches Migration
The program on migration-related issues is divided into five parts:
1. A common European asylum system
2. Legal migration and the fight against illegal employment
3. Integration of third-country nationals
4. The external dimension of asylum and migration policy
5. The management of migration flows
This division of issues is notable for the subtle, but important ways in which it diverges from the four themes included in the previous Tampere program:
1. Partnerships with countries of origin
2. A common European asylum system
3. Fair treatment of third-country nationals
4. The management of migration flows
In some places, the Hague Program's terminology is more direct and pragmatic. For example, unlike the Tampere Program, the Hague Program includes references to policies on legal migration, although little is specified in terms of the form or size of such immigration. However, the Hague Program is certainly not intended to lead to an EU-wide immigration system, or even to increase opportunities for legal immigration to Member States.
Integration is also new on the agenda: rather than seeking only fair treatment of foreigners, the EU is aiming for their full integration as members of European society. Some fundamental policy guidelines are to be expected, if not specific legislation.
Rather than focusing on somewhat nebulous "partnerships" with countries of origin, the new program recognizes the "external dimension" to asylum and migration policy. In other words, the Hague Program envisions promoting refugee protection beyond the European Union and incorporates migration management within broader foreign policy concerns.
The Hague Program also includes requests and deadlines for the European Commission. The Commission will be responsible for producing the proposed laws and common policy approaches in each of the areas described in the program. The Member States will surely amend these proposals over the course of many months or years before any decisions are taken on final legislation or common approaches.
The Hague Program and the Common European Asylum System
Notably absent from the Hague Program is the notion that there could be a refugee status valid throughout the Union. This was included in the Tampere conclusions but not picked up under the Hague Program. Currently, refugees continue to be excluded from the privileges of long-term residence status as agreed by the EU Member States under the Tampere Program.
The Hague Program requests exploration of the legal and practical implications of jointly processing asylum applications within the Union. It also requests that the Commission, along with the United Nations High Commissioner for Refugees (UNHCR), investigate the merits, appropriateness, and feasibility of the joint processing of asylum applications outside EU territory.
There is also a plan to establish cooperation among national asylum offices with the goal of setting up a European support office for technical assistance.
However, the major task for the Commission in the asylum section of the Hague Program is to monitor and evaluate how Member States have implemented the Tampere Program-era legislation. This should be completed by 2007, and, by 2010, the Commission is to produce proposals for the next phase of a common asylum system.
Legal Migration and the Fight Against Illegal Employment
Immigration levels still remain under the control of individual Member States; the Hague Program does not challenge this control.
The sole action outlined in this area is that by 2005, the Commission should have a policy plan on legal migration, including admission procedures capable of responding promptly to fluctuating demands for migrant labor.
This effort is viewed within the context of the Lisbon Strategy, a 10-year effort to promote the EU's economic competitiveness.
Integration of Third-Country Nationals
The Hague Program refers specifically to equal opportunities for third-country nationals, not just their fair treatment as referenced in the Tampere Program.
The European Council, which consists of the presidents and prime ministers of all Member States, is trying to coordinate national policies and initiatives at the EU level. To make this happen, the Council has established the Common Basic Principles, which outline how integration, as a two-way process between citizens and newcomers, can take place. Part of this effort will include a website where citizens and newcomers can exchange experiences and information.
The External Dimension of Asylum and Migration
This part of the Hague program is divided into four sections:
1. Partnerships with third countries
2. Partnerships with countries and regions of origin
3. Partnerships with countries and regions of transit
4. Return and readmission policy
Partnerships with third countries
The European Council wants the EU involved in helping non-EU countries with issues related to borders, information-gathering, and durable solutions for refugee protection. Importantly, from the refugee protection perspective, the program acknowledges a role for Member States and European institutions in refugee issues beyond asylum in the EU.
Partnerships with countries and regions of origin
The European Council has asked the European Commission to develop refugee protection programs in partnership with the third countries concerned, and in close cooperation with UNHCR. The EU will launch pilot regional refugee protection programs before the end of 2005. Several Member States with existing resettlement programs are disappointed that resettlement was not specifically included as a goal in the Hague Program.
Partnership with countries and regions of transit
This section links asylum and migration issues to the European Commission's existing proposal for a European Neighborhood and Partnership Instrument, which sets out programs and activities for increasing cooperation with states in the Mediterranean basin and Middle East, as well as states to the east of the enlarged EU and in the Caucuses.
Return and readmission policy
The European Council has called for closer cooperation and the launch of a European Return Fund, which would support Member States in their removals programs and other activities related to returning irregular migrants and failed asylum seekers. In addition, the European Council wants the European Commission to appoint a special representative for a common readmission policy and to increase the number of readmission agreements with origin countries. The Commission has successfully negotiated only a handful of such agreements with countries such as Hong Kong and Macau.
Management of Migration Flows
The Hague Program focuses on three areas: borders, biometrics, and visas. The primary objective is to fully abolish internal borders while providing the maximum security and orderly passage at external borders. Areas to be pursued include biometric identifiers for EU citizens' and EU residents' travel documents, visas, and residence permits. Minimum standards for national identity cards also will be developed.
In addition, the program seeks the development of policies for common visa offices as well as best practices and mechanisms to fight trafficking and smuggling.
Finally, and innovatively, the European Council has cautiously asked the Justice and Home Affairs Council and the European Commission to examine whether short-term stay visas for tourism or brief business visits could be offered to nationals of those states with which the EU may sign readmission agreements. This move would be "part of a real partnership in external relations including migration-related issues."
The cautious nature of the approach is demonstrated in the European Council's language, which says that the Commission and the Justice and Home Affairs Council should look at whether it would be "opportune to facilitate, on a case-by-case basis," the extension of such visa privileges to sending countries outside the EU; it includes the firm mention that these privileges would have to be reciprocated for EU nationals.
However, the governments of many of the countries concerned — including countries in the rest of Europe, Central Asia, Africa, Asia, Latin America, and the Middle East — are generally not looking for short-term visas for their nationals. Instead, they are interested in migration opportunities, perhaps on a short-term basis, for employment purposes.
It is doubtful whether short-term visas for tourism or brief business visits — rather than for temporary migration and employment — would be enough for these states to accept the return of their nationals who may have entered the EU illegally or overstayed a legal visa, and of migrants who had transited their territory en route to the EU.
The Hague Program sets out an ambitious agenda, with at least 11 major tasks in 2005 for the already resource-stretched directorate of the European Commission. This will be a heavy workload, and it remains to be seen whether it is achievable.
In the asylum area in particular, the program does not set out a clear path for a future asylum system. Rather it relies on existing agreements, few of which are widely perceived as far-reaching or even satisfactory, to see where cooperation might be taken five years from now.
Legal immigration channels and immigrant integration are left almost entirely to the Member States, showing that the political will to truly have a European immigration policy is still lacking, in spite of rhetoric to the contrary.
The Hague Program's ambitious goals will be particularly difficult to fully achieve because implementation is in the hands of the Member States. The EU's framework requires national governments to agree to a text at the EU level and also to include that text in its national laws.
As such, the European Council's Member States can be expected to continue to seek legislation that is similar to their existing national laws. These national laws are perceived as much weaker than ones based on a "clean sheet" developed at the EU level.
Because Member States lack any real incentive to strive for EU-wide policy in this area, and because they cling to their sovereignty on this issue in spite of common interests, small changes to existing national laws are likely to dominate. Even a move to qualified majority voting — in which each state has a weighted vote depending on its size — will probably not speed up this slow-moving process.
A truly common European policy on immigration and asylum, which addresses states' interests and needs as well as the reality of migration and refugee movements, is unlikely to be achieved by the time the Hague Program concludes in 2010. The agenda the European Council has set out is ambitious and will surely take the Union another step or two forward. It seems likely that a genuine EU immigration, asylum and refugee protection policy will have to wait for at least one more five-year plan, or a bold change in direction.
Council of the European Union (2004). “Presidency Conclusions.” (Note: includes the Hague Program)
Danish Refugee Council, Migration Policy Institute, and the Institute for Migration and Ethnic Studies (2004). “Study on the Transfer of Protection Status in the EU, Against the Background of the Common European Asylum System and the Goal of a Uniform Status, Valid Throughout the Union, for Those Granted Asylum.”
Migration Policy Institute (2003). “Study on the Feasibility of Setting up Resettlement Schemes in EU Member States or at EU Level, Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure.”