11.4.2006   

EN

Official Journal of the European Union

C 88/15

1.1

The Communication establishing a Framework programme on ‘Solidarity and Management of Migration Flows’ is part of a package of proposals (1) providing for the setting-up of a programme for implementing the Financial Perspective for the period 2007-2013 (2) and the measures set out in the Communication on the policy challenges and budgetary means of the enlarged Union 2007-2013 (3) (see EESC opinion; rapporteur: Mr Dassis (4)), which proposed the granting of commitment appropriations totalling EUR 1,381 million for the European area of freedom, security and justice in 2006 (Heading 3: Citizenship, freedom, security and justice), rising progressively to EUR 3 620 million in 2013.

1.2

Overall, the aim should be to further the three objectives of freedom, security and justice to the same degree of intensity, as part of a balanced approach based on the principles of democracy and respect for fundamental rights and freedoms.

1.3

Of the total amount (EUR 9,500 million) initially proposed, the overall amount foreseen for the framework programme Solidarity and Management of Migration Flows was EUR 5 866 million for the period 2007-2013, of which EUR 1 184 million was earmarked for asylum; EUR 759 million for the Return Fund; EUR 1 771 million for integration of third-country nationals; and finally EUR 2 152 million for external borders management. The amounts allocated to the Member States and direct Community action (NGOs and projects) will not be transferable from one Fund to another.

1.4

The framework programme on solidarity does not include the agencies and other Community instruments falling within the sphere of freedom, security and justice, viz.: the European Agency for the Management of Operational Cooperation at the External Borders, which will operate in the area covered by the proposed framework programme and the new financial perspective; the EURODAC system (for the comparison of digital fingerprints); the Visa Information System; and the Schengen Information System (SIS II). These information systems are long-term commitments, and the legislative acts establishing them do not contain provisions limiting their duration.

1.5

The present framework programme aims, inter alia, to provide for the necessary coherence between relevant interventions in each policy area by clearly linking political objectives and the resources available to support them. The Commission intends to simplify and rationalise existing financial support. The framework programme also seeks to improve transparency and increase flexibility in the setting of priorities.

1.6

According to the Commission document, the financial solidarity of the European Union should thus be able to enhance and support the four pillars of a comprehensive and balanced approach to migration flows by:

1.7

The Commission proposal was the subject of an extended impact assessment (6), which is appended to the proposal.

2.1

Although the programme builds on the coherence provided by the Tampere Summit and the Hague Programme and on Articles 62 and 63 of the Treaty, the programme framework rests on only a small body of harmonised legislation despite the Council's efforts to adopt some common measures under the Tampere Programme (7). Thus, the European Council of 4 and 5 November 2005 adopted the second multiannual programme for the creation of a common area of freedom, security and justice, known as the Hague Programme.

2.2

The Committee notes that, despite the ‘Hague Programme’, a really satisfactory common political approach does not exist as of yet. In its opinion on the Communication from the Commission to the Council and the European Parliament: The Hague Programme: Ten priorities for the next five years — The Partnership for European renewal in the Field of Freedom, Security and Justice  (8), the Committee set out in detail its views on the Commission action plan relating to the Hague Programme. Member States apply very different practices depending upon their geographical location. As a result there are differences between Member States in terms of policy and responsibilities towards Community citizens or third-country nationals, resulting in the juxtaposition of sometimes conflicting and antagonistic policies within the Community, according to whether or not they are parties (in full or in part) to the Schengen I and II conventions, the Dublin I and II conventions (9) or, for example, Community programmes for lasting solutions to the resettlement of refugees (10). Experience shows that in order to pursue policies to improve practices, on the one hand, or bring about a balancing and dovetailing of responsibilities towards a common objective, on the other, the setting-up of new Funds and financial instruments is not enough.

2.3

In the field of political and humanitarian asylum, the drawing up of a list of ‘safe’ third countries remains a contentious issue, particularly among recognised NGOs in the sphere of human rights which are active in humanitarian aid. The Committee does not think that it is appropriate to treat asylum and immigration within the same framework when there are marked differences in terms of constraints and scope for action.

2.4

Although the Committee is aware of the overarching and holistic objective of the programme, it has reservations about the way in which border protection and integration of migrants are treated under the same initiative. It nevertheless feels that it is necessary to manage the funds in a coordinated and coherent fashion, for the following reasons:

Moreover, still mindful of the overall objective of the programme, the Committee stresses the need for the two programmes to be sufficiently distinct from each other so as to prevent any confusion that could arise.

3.1

The Committee would point out that the content of the Commission document cannot be the same regardless of whether or not the Constitutional Treaty is ratified or the Charter of Fundamental Rights is incorporated in the Treaty.

3.2

The Committee endorses the setting-up of solidarity funds but urges the Commission to adapt this process to the Hague Programme, taking on board the EESC opinion on this subject (11).

4.1.1

Asylum, immigration, integration, multidimensional aspect, credible response, lasting solution — these are some of the stated objectives. However, to complement the economic approach adopted by the Commission in the Green Paper on an EU approach to managing economic migration (12), the Communication should pay more attention to aspects of individual and universal rights in the field of migration by establishing links with the General programme Fundamental Rights and Justice and draw on the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (13).

The Committee also urges the Commission to pay more heed to the evaluation report drawn up every four years by an independent committee of legal experts and submitted to the Intergovernmental Committee in the context of the institutional monitoring of compliance with the Council of Europe's Revised European Social Charter and to take this into account in its additional proposals.

The Committee notes that it is intended that the management of these structural funds would for the most part be delegated to the Member States as part of their responsibilities, in compliance with subsidiarity principles. As regards the principle of proportionality and already pointed out in its opinion assessing the Hague Programme and the related action plan, the Committee feels that ‘the Hague Programme makes setting up arrangements for the assessment of existing policies a clear priority. Before adopting these initiatives it is necessary to carry out a detailed and independent study of their effectiveness, added value, proportionality and legitimacy (compliance with human rights and civil liberties)’ (14).

The Committee is also concerned about the follow-up to be given to the hearing of NGOs and associations representing civil society and the social partners that was held on the above-mentioned Green Paper on 14 June 2005, where a large number of organisations spoke out against the primacy of the economic approach over human rights and on the need to understand all aspects of the human, cultural, social and legal implications for all refugees and host countries.

4.1.2

Finally, the Committee would have liked to see the inclusion in the Commission initiative of the proposals it put forward in its previous opinions on these matters.

4.1.3

The Committee would stress that questions related to the migration of persons should not be treated as a problem a priori. Today's immigration, which comes on top of older immigration, is creating a new political, economic and social situation that society as a whole must address, taking into account the right of people to choose their destiny within the international, European and national legal framework adopted by the Member States and through which they are linked (15).

4.1.4

The returns identified as a ‘solution’ by the Commission must not mean that a contrast is drawn between the rights of ‘legally’ and ‘illegally’ staying third-country nationals. An irregularity is not a permanent situation which has been deliberately chosen so as to allegedly benefit from a hypothetical status. There are many different kinds of irregularity; the Committee has issued several opinions in which it has tried to make the European institutions more aware of what is at stake economically and of the reality of the victims' situation (16). Return policy must always respect human rights and fundamental liberties.

4.1.5

The ‘management’ of borders and visas should not take precedence over humanitarian, social, political or legal aspects.

Deep-seated persistent causes such as drought in sub-Saharan Africa call for resources for development, cooperation and combating global warming, going well beyond the EUR 759 million allocated to forced returns and the EUR 2.15 billion allocated to management of external borders in the consular field. They require a political assessment and a firm commitment to long-term action. Given that the fight against hunger and drought is unfortunately not even included in the millennium objectives, the Committee calls upon the Commission and the Council to take an active interest in this question and:

The Committee does not regard transferring the responsibility for repatriation to the transit countries as an appropriate or acceptable solution. There is a need to improve coordination between the EU institutions and the authorities in the third countries from which immigrants come. Moreover, the question of immigration should be made an integral part of the Union's external relations.

4.1.6

The free movement of persons cannot be ‘managed’, to borrow the term used in the Communication, in the same way that financial flows or services can.

4.1.7

The four financial instruments proposed by the Commission to support action taken by the Member States in the area of immigration should be applied in such a way as to enable policy to be conducted in a coordinated manner in this field, which, besides appropriate management of migratory flows, includes the integration of third-county nationals residing legally in Member States under the same conditions as nationals.

The Committee would take this opportunity to denounce the social dumping that may arise from the provision of cross-border services, which is the primary channel of legal immigration. This problem also concerns workers from the new Member States as a result of the temporary rules applied to them.

The work of the social partners and organised civil society plays a key role in this regard and must be supported and acknowledged.

‘Irregular secondary movements’: on account of very strict rules and — as the Committee would like to point out — the non-adoption by the Council in 2002 of the Admission Directive (despite the support of the Committee and the European Parliament), ‘regular’ secondary movements refer in law and in fact to persons who have been resident in a Member State for more than five years and who apply for residence in a second Member State and to persons who have been residents for less than five years who apply for a stay of short duration in a second Member State. Therefore the Committee assumes that by ‘irregular secondary movements’, the Commission means movements of illegal residents and asylum seekers whose applications have been rejected in the first host country. Such persons are not only entitled to lodge an application — which they are not always permitted to do in all Member States — but they are also entitled to an individual assessment and a suspensive right of appeal. In some Member States such appeals are non-existent, rendered impossible or are non-suspensive. The Committee understands that it must be possible to use a financial instrument to promote the implementation of the Dublin I and Dublin II conventions (on which the Committee has issued an opinion). But while the Commission must ensure that funds are distributed equitably, it should pay particular attention to the Member States which are most affected by migratory pressure, taking into account not only their position as border states but also their size (e.g. Cyprus, Malta, etc.), their general reception capacities (asylum, resettlement, immigration) and best practices in terms of compliance with their obligations. The Communication does not establish sufficiently precise guidelines for an equitable sharing of the responsibilities. Financial assistance should not be granted to Member States which close their reception centres or reduce their capacity.

4.1.8

‘Integrated return management’ procedures: the Committee, in its strictly consultative role as the assembly representing organised civil society, would point out that this is about human beings and individuals. It would be more appropriate to develop lasting cooperation that respects peaceful objectives and determine which criteria should be applied to gauge the degree of voluntary return.

4.1.9

The Committee is surprised to read in the proposed text that the specific objectives defined for the European Return Fund include action ‘ensuring the provision of specific assistance to vulnerable groups, such as children, … and those who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence’. It should, however, be remembered that the Geneva Convention lays down provisions on the procedures, individual assessments and appeals to which such persons are entitled. With the adoption of the Qualification and Status Directive (17) and in view of the fact that the Member Sates are parties to the European Convention on Safeguarding Human Rights and Fundamental Freedoms, the Committee finds it hard to believe that persons in such a situation could come under the scope of ‘voluntary returns’.

4.1.10

The Commission should reflect on the criteria to be used to measure the success of a voluntary return programme. The Committee understands that what is at issue here is not cooperation or the development of personal plans for individuals but rather repatriation after a judicial or administrative decision and a decision on return and removal. The Committee defends the necessity of respecting and upholding the European Convention on Human Rights and the Charter of Fundamental Rights and complying with the applicable principles: no one should be forced to return if this would put their life in danger. In this regard, emphasis should be given to means of access to justice. Appeals should always be suspensive. Finally, returns should take place only on an exceptional basis in accordance with the approach laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe. This is not the impression conveyed by certain terms in the proposal (see, for example, section 5.1.3 of the Financial Statement).

The Commission should put forward more detailed implementing provisions which guarantee advice, material assistance and other appropriate forms of support in connection with returns. It should also put forward provisions on, for example, independent and credible monitoring and control arrangements with regard to the safety, protection and well-being of repatriated persons.

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supports the proposal to set up a European Fund for the Integration of Third-country Nationals for the period 2007-2013, a European Refugee Fund following on from the existing fund, and an External Borders Fund;

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asks the Council to examine and adopt together the draft Communication defining the framework of the general programme ‘Solidarity and management of migration flows’ and the decisions setting up specific funds for implementing the general programme;

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calls upon the Commission to take account of the EESC's recommendations in its action plan linked with the Hague Programme;

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recommends that the Council and the Commission ensure the transparency of operation of these new structural funds by making an explicit connection between the Hague Programme and the Communication under consideration;

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calls for practical provisions to be included in the decisions setting up these various funds to ensure that non-state operators are associated at as early a stage as possible in the annual and multi-annual framework of guidelines drawn up by the Member States and by the Commission itself.