Institutionalizing European cooperation on …...European immigration, the existing institutional...

P. Hogwood ‘Institutionalising European cooperation on immigration control’

Workshop 28: ‘Institutionalising European Cooperation in the Area of Internal Security’

ECPR Joint Sessions of Workshops Lisbon 2009

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Directors: Thomas Christiansen and Mark Rhinard.

‘Institutionalising European cooperation on immigration control’

Patricia Hogwood, University of Westminster

WORK IN PROGRESS – PLEASE DO NOT CITE

Abstract

Mass, unwanted immigration is increasingly perceived by European Union (EU) political

elites as a threat to internal security. The problem of immigration control serves to illustrate

the complexity of the EU’s emerging protection policy space (Boin et al, 2006). In spite of

widespread acknowledgement of the need for comprehensive, transnational and cross-sectoral

solutions to the problem of immigration control, political agreement on the location and

structures of decision-making and on specific policy aims and tools has proved difficult to

achieve. European immigration policy illustrates the increasingly ‘fuzzy’ borders between

what constitutes internal and external security; incorporates interests associated both with

high and low politics; and struggles to reconcile internal and external security aims with

humanitarian aims. The EU’s immigration security policy is currently formulated and

implemented within a fragmented institutional framework operating at multiple decision-

making venues and across all three pillars of the EU. This pattern of loose institutionalisation

involves a wide range of institutions operating with different remits and competencies with

the overall aim of creating an immigration regime which supports internal security.

Institutional development at the level of the EU has taken place in different ways and with

different levels of consistency in the context of five broad strategies: harmonisation;

securitisation; militarisation; deportation and beyond-borders initiatives (Hogwood, 2008).

Drawing on historical institutionalist and multi-level governance approaches, this paper

examines the institutionalisation of immigration control in the wider context of the EU as a

security provider. It is argued that key concepts in historical institutionalist approaches, such

as critical juncture, shifting actor hierarchies, path dependency and unintended consequences,

can aid understanding of some of the apparent paradoxes in the development of European

immigration policy as part of a wider European protection policy space. The paper argues

that the Al-Qaeda attacks on western targets in the years 2001-5 provided the catalyst for a

critical juncture in the development of a European immigration regime. This increases the

relevance of immigration policy to the EU’s protection policy space and also has substantial

implications for political actors, policy aims and outcomes.

Author contact details

Dr Patricia Hogwood

Reader

Department of Politics and International Relations (DPIR)

School of Social Sciences, Humanities and Languages

University of Westminster

32-38 Wells Street

London

W1T 3UW

tel +44 (0)207 911 5000 x 7610; personal profile http://www.wmin.ac.uk/sshl/page-2206

http://www.wmin.ac.uk/sshl/page-2206




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Introduction

Mass, unwanted immigration is increasingly perceived by European Union (EU) political

elites as a threat to internal security. The problem of immigration control serves to illustrate

the complexity of the EU’s emerging protection policy space (Boin et al, 2006). In spite of

widespread acknowledgement of the need for comprehensive, transnational and cross-sectoral

solutions to the problem of immigration control, political agreement on the location and

structures of decision-making and on specific policy aims and tools has proved difficult to

achieve. European immigration policy illustrates the increasingly ‘fuzzy’ borders between

what constitutes internal and external security; incorporates interests associated both with

high and low politics; and struggles to reconcile internal and external security aims with

humanitarian aims. The EU’s immigration security policy is currently formulated and

implemented within a fragmented institutional framework operating at multiple decision-

making venues and across all three pillars of the EU. This pattern of loose institutionalisation

incorporates a wide range of institutions operating with different remits and competencies

with the overall aim of creating an immigration regime which supports internal security.

Given the complexity of the emerging European immigration regime, it seems advisable to

introduce some of the main arguments and findings of the paper at the outset. The first

concerns the actors driving institutionalisation and policy development in this field.

Historical institutionalist approaches maintain that institutions are not value neutral, but

‘biased’ (Stinchcombe, 1968: 107; Immergut 1998: 8; Hall and Taylor, 1996: 937; Evans et

al, 1985; Krasner, 1988; Katzenstein, 1978). Institutional frameworks represent fairly

consistent hierarchies of actors (Hage and Sorenson, 1996), so that some interests are strongly

prioritised whereas others are marginalised or even excluded (March and Olsen, 1984: 740).

This paper argues that the institutional development of the EU’s immigration and asylum

policies has favoured the ‘intergovernmental’ institutions over the ‘supranational’ ones.

Specifically, the home and justice ministers operating in the Council of Ministers and the

member state heads of state and government in successive European Councils have occupied

a favoured position over the Commission, the European Parliament and the European Court of

Justice.

These more favoured intergovernmental actors have driven a ‘control’ agenda on immigration

over alternative humanitarian and preventive agendas preferred by other institutions and

agents. Generally, as institutions change, the patterns of bias within them may be expected to

alter, although the original bias of an institution may restrain the pace and the direction of any

redistribution of influence (Immergut, 1992). It is argued here that whereas some




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developments in the 1990s pointed towards a rebalancing of interests between the advocates

of security control-oriented policies and more humanitarian and preventive polices on

European immigration, the existing institutional biases proved too strong and the critical

moment1 was lost. Instead, the institutional advantage of actors advocating a control agenda

was both consolidated and qualitatively altered by the critical juncture occasioned by the Al-

Qaeda terrorist attacks on western targets of 2001-5. A critical juncture can be defined as ‘a

period of significant change ... which is hypothesised to produce distinct legacies’ (Collier

and Collier, 1991:29; also Hall, 1986:66). It is a point at which institutional development

branches off on a new trajectory which is then followed incrementally in a path dependent

manner (Burch et al, 2003:8). The period 2001-5 amounts to a critical juncture in the

development of a European immigration regime in that it has resulted in a qualitative shift in

the discourse of immigration control from securitisation to militarisation and a further

rebalancing of conflicting aims in favour of ‘control’ aims over humanitarian and preventive

aims. This in turn has prompted an irreversible transfer of authority for immigration security

issues from the level of the nation state to the European Union; and these developments have

been consolidated in an externalisation of control strategies and in numerous legislative acts,

new institutions and supporting systems. Together, the changes have increased the relevance

of immigration for the EU’s protection policy space.

Moreover, policy developments since the juncture of 2001-5 suggest that a ‘paradigm shift’

has taken place in European immigration policy. Hall (1993: 278-9) argues that a paradigm

shift occurs where three levels of policy change take place simultaneously. Change in the

calibration of policy tools and instruments to achieve agreed ends may be defined as ‘first

order’ change. Change in the policy instruments themselves may be classed as ‘second order’

change. Policy change at these levels may be considered to fall within the normal parameters

of policy development. However, ‘third order’ change takes place when the entire

interpretive framework shifts, establishing a new set of values and reference points and

resulting in new policy aims. This paper argues that these three levels of change can be

identified within the European immigration regime and that they can be traced to the critical

juncture of the 2001-5 terrorist attacks.

Institutional development at the level of the EU has taken place in different ways and with

different levels of consistency in the context of five broad strategies: harmonisation;

1 A ‘critical moment’ takes place when a general expectation of a significant change arises. This may

be realised in a ‘critical juncture’, or alternatively, the moment may pass (Bulmer and Burch, 1998,

2000; Burch et al, 2003).




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securitisation; militarisation; deportation and beyond-borders initiatives (Hogwood, 2008). In

a pattern of development that can be equated with Hall’s ‘second order’ change (Hall, 1993:

280), existing strategies of harmonisation and securitisation have been supplemented in the

early 2000s with strategies of militarisation; agreements on deportation; and the rapid

development of beyond-borders initiatives. For the favoured actors advocating a strong

control agenda for European immigration politics, an externalisation of existing internal

security measures and strategies was the logical response to the newly constructed security

threat of immigration. This externalisation has added a new facet to EU immigration

strategies: the existing ‘securitisation’ strategy, with its focus on internal security, has been

supplemented with a ‘militarisation’ strategy, focused on external border security.

Agreements on deportation have tipped a delicate balance between perceptions of human and

civil rights needs and security needs; and many of the beyond-borders developments represent

an extension of the control agenda.

Such externalisation of immigration policy has increased the need for the EU to deal and

negotiate with third states in order to achieve European aims. With this, externalisation has

drawn attention to the inherent conflict of immigration policy aims facing the EU: on the one

hand its self-understanding and its internal portrayal of itself as a security actor, and, on the

other hand, its self-understanding and its external portrayal of itself as an ethical international

actor. It is this conflict that lies at the heart of seemingly paradoxical combinations of

immigration policymaking and implementation strategies observed in the EU protection

policy space: for example, the combination of a security rationale for the introduction of the

European border control agency Frontex with a de-securitised, risk-analysis based

implementation (Neal, 2009); the controversial agreement on deportation recently passed by

the European Parliament combined with the humanitarian justifications offered by

participants in the decision; and the ‘offsetting’ of immigration control measures with

humanitarian and preventive measures in wider trade and development aid agreements

between the EU and third states. The historical institutionalist concept of ‘unintended

consequences’ allows the analyst to accept the possibility of such mismatch between stated

policy aims and outcomes and to uncover some of the reasons for them.

Conceptualising European immigration as a security threat: continuity or ‘third order’

change?

From the start, the EC/EU’s engagement in immigration matters has attempted to balance two

fundamentally different goals: firstly to regulate and thereby restrict migrant inflows to the




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member states; and secondly to secure the humane treatment of foreign incomers, and, for

those who stay, to promote their integration into their host societies. Lavenex (2001b) refers

to this as a clash of a ‘realist’ frame of internal security for immigration policy with a ‘liberal

frame of humanitarianism’ (Lavenex, 2001b:24). However, the control of migrant inflows

has always been the dominant development. Even in the early ad hoc intergovernmental

meetings predating the EU, immigration matters were explicitly linked to problems of

international drug trafficking and other forms of organised and cross-border crime (Bretherton

and Vogler, 2006: 47). While the consistent prioritisation of security in European

immigration policy is indisputable, this paper argues the events of the years 2001-5 mark a

fundamental change in constructions of European immigration as a security threat. Recent

literature has tended to underplay the catalytic influence of these years and instead stresses the

apparent continuities in this field. It is often argued that perceptions of immigration as a

threat to internal security began to form long before the post-Cold-War security and terrorist

scares, and that the Al-Qaeda terrorist attacks have resulted in a less profound securitisation

than was initially claimed (Boswell, 2007; Neal, 2009). While it is true that certain

continuities can be established, it is the third order change in interpretive framework that

accounts for the paradigm shift argued here and which is already resulting in ‘distinct

legacies’ (Collier and Collier, 1991:29) for the European immigration regime.

Constructions of threat up to the 1990s

In Europe, perceptions of threat from immigration have arguably always been present and

have escalated from the 1970s onwards. Constructions of such threat have changed and

developed, but key themes have included: excessive and uncontrolled numbers of foreign

incomers; their diversity and difference from the host society (see e.g. Walzer, 1981; 1983);

and an assumption that incomers (particularly asylum-seekers) arrive with the intention of

exploiting the host society. The most significant shift in perceptions has entailed an

overlayering of a fear of economic threat from foreign incomers with an additional fear of

threat to internal security. Perceptions of exploitation were heightened by earlier

constructions of foreigners as an expendable tool of labour policy. From the end of the

Second World War until 1972, western European countries sought to make up a shortfall in

their workforce caused by war casualties and a declining population by taking on workers

from overseas, first using workers from former colonies and refugees and thereafter actively

recruiting ‘guestworkers’. In the late 1960s, Charles Kindelberger developed a model for

European economic growth posited on an unconstrained supply of labour. He emphasised the

advantages of using foreign labour both to offset slower indigenous population growth, and as

a ‘conjunctural buffer’. These ideas strongly influenced the official position of the OECD




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and promoted a positive view of the foreign ‘guestworker’ (Zolberg, 1989: 407-8). However,

this construction lent itself to unrealistic expectations of foreign incomers that were untenable

in the longer term. In Europe, guestworkers were not perceived as permanent settlers as in the

traditional ‘immigration’ countries of the new world, but as contingency labour, to be

deployed as a tool of economic policy when the need arose. With this collective and

instrumental conception of immigrants, positive perceptions were inevitably transmuted into

negative perceptions when economic conjunctures changed. The view of mass immigration

into Europe as a threat escalated from the early 1970s. Between 1972 and 1974 the

Kindelberger orthodoxy was challenged by a sharp economic downturn. Throughout the

1970s, economic recession coincided with industrial restructuring, which progressively

reduced the demand for the type of low-skilled labour traditionally provided by immigrant

workers. Western European governments halted or severely restricted their recruitment of

migrant labour and then attempted financial incentive schemes to encourage former migrant

workers to return to their home countries (Meyers, 2002: 125). At best, these had only

qualified success (Boswell, 2003: 619). By this time, many guestworkers had been joined by

family members and had become long-term residents in well-established immigrant

communities. European countries began to experience not only the net costs to welfare

services of unemployed guestworkers, but also the socially destabilising effects of their

ghettoisation.

As channels for legal employment atrophied, legal inflows came to be supplemented by

illegal streams, both voluntary and involuntary (trafficked). Asylum-seeking and illegal

immigration took on mass proportions. Immigration in these categories had been rising for

some time because of continued population growth and economic weakness in the developing

countries of Africa and Asia. In particular, the proximity of Africa, which has the world’s

highest population growth, to Europe, with its declining population, has fed ‘south-north’

inflows (Salt, 1996: 102-3). With increasing numbers came a new diversity of incomers.

New flows of migrants began to come to Europe from regions and countries with no prior

migratory ties to the host country (Libercier and Schneider, 1996:13-14). From the mid

1980s, western European host states found their asylum provisions overwhelmed by

applicants increasingly perceived as ‘false’ asylum-seekers. All European receiving countries

introduced measures to prevent illegal immigration and to reduce the number of foreign

incomers awarded asylum (Meyers, 2002: 125). With the collapse of Soviet control in the

late 1980s, conflicts and political upheaval in Central and Eastern Europe introduced a new

‘east-west’ migration stream into western Europe (one which currently dominates the policy

initiatives of the European Union). The eastern enlargement of the EU can be linked to a

gradual institutionalisation of restrictive asylum and immigration regulations (Lavenex, 2001:




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24). From the early 1990s, migration was increasingly linked with organised crime, terrorism

or Islamic fundamentalism and used to channel generalised concerns about social problems

and the perceived degeneration of traditional collective identities (Beck, 1992: 49; Huysmans,

2000; Boswell 2003: 623-4). New migration pressures were anticipated: for example, drought

patterns in Africa raised the prospect of a new exodus of ‘environmental refugees’ (Salt,

1996: 107). From the mid-1980s, then, a general perception has arisen amongst European

elites and publics of a migration threat that is running out of control. Once of the most

immediate and tangible impacts of the current ‘credit crunch’ in Europe has been the intensive

media attention on unwanted immigration and increased government attention on measures to

restrict such inflows.

New constructions of threat after 2001-2005

Certainly then, by 2001, the experience of over a decade of mass and largely unwanted

immigration and the prospect of eastern enlargement had already led the EU to prioritise

border control and to represent it as a security issue. Nevertheless, the new threat from radical

Islamic movements, violently realised in attacks on western targets between 2001 and 2005,

can be seen as resulting in a qualitative shift in perceptions of the EU as a security provider.

Al-Qaeda attacks were carried out on the World Trade Centre in New York on 11 September

2001; in Madrid on 11 March 2004; and in London on 7 July 2005. Western European states

had been familiar with the threat posed by the radical left and right, but these attacks posed a

new type of ideological threat: one motivated by a fundamentalist religious stance associated

with foreign incomers and foreign-born residents. In Europe, the psychological blow of being

caught out by a virtually unknown ‘enemy’ challenged prevailing ideas about the appropriate

balance between maintaining internal security and upholding individual civil liberties

(Hogwood, 2005a:3). Nowhere was this more evident than in member state and EU

approaches to immigration (Lavenex, 2001a :200). These attacks fundamentally changed

perceptions of immigrants and foreign denizens in the member states. Negative stereotypes

had already become common, but the basic perception of foreign incomers in economic terms

- as labour force contributors and/or welfare (ab)users - was now supplemented with the

perception that all foreign incomers might be a potential criminals: ‘terrorists in disguise’

(Guiraudon, 2004:171). Together, they introduced within the EU a discourse of exclusion

that explicitly prioritised security concerns over respect for human rights (Den Boer and

Monar, 2002: 26-27). Lahav goes so far as to suggest that, in the early to mid 2000s, the

EU’s discourse on immigration became irretrievably associated with security (Lahav, 2006:

215). These altered perceptions in turn resulted in an explicit linkage of immigration policy

aims with those relating to external security. The focus of securitisation shifted from internal




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security (e.g. the coordination of visa policies in the Schengen group) to the securing of

external borders. With this, the Al-Qaeda attacks prompted a qualitative development from

the prior European discourse on the securitisation of immigration to a discourse of

militarisation in the form of the ‘war on terror’, again with explicit linkages to foreign

incomers. In addition, the Al-Qaeda threat led to a growing perception amongst member

states of the EU as an appropriate forum for the coordination and development of immigration

and asylum policies. In place of the previous ad hoc drift away from a Westphalian model of

policy handling (see below), a consensus emerged amongst member states that definitively

shifted the locus of the negotiation and agreement of policy relating to immigration matters

from a Westphalian to a regional model. There took place a simultaneous development of a

shifting ‘up’ of European migration control to the supranational decision-making structures of

the EU and a shifting ‘out’, as European immigration matters became incorporated into

external relations with other states (Lavenex, 2006).

Immigration control within the EU Treaty framework: fragmented institutionalisation

and its consequences

At the outset of the European project in the 1950s, the suggestion that immigration and

asylum matters should be subject to European integration would have been unthinkable

(Hogwood, 2008: 2). The designation of citizens and non-citizens and the right to determine

the circumstances under which non-citizens might enter a nation-state’s sovereign territories

rank amongst the most fundamental tenets of the sovereign state. The member states’

reluctance to give up their autonomy on these matters was maintained as the European

Communities underwent its early enlargements and gained additional competencies in other

policy areas. However, from the early 1980s onwards, shared concerns over immigration and

asylum matters prompted member state leaders and officials to begin to share information and

attempt to coordinate national policy responses. These concerns included the development of

mass levels of unwanted immigration into the wealthy states of the EC, compounded by the

collapse into civil war of the former Yugoslavia. A further problem was introduced with the

Single European Market (SEM) project, which established the principle of the ‘free

movement of persons’ within the EC. Intended to facilitate the completion of the Single

European Market, the Schengen agreements (1985, 1990) inevitably opened most internal EC

borders to all, including resident foreigners and incoming foreigners. This presented new

opportunities to foreigners with an irregular status. For example, it allowed a failed asylum-

seeker to cross a border to a neighbouring EC state and attempt a fresh application, or an

illegal immigrant more scope to avoid the attention of the authorities by moving from member




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state to member state. The EC/EU’s response was to adopt ‘compensatory measures’ to

safeguard internal security by improving cooperation and coordination between member

states police and the judicial authorities.2 This was the beginning of the EU’s preoccupation,

as an immigration policy actor, with institutionalising immigration control at its external

borders.

Prior to the establishment of the European Union through the Maastricht Treaty (1993), the

coordination of measures on immigration at the European level took place in inter-

governmental fora outwith the treaty framework of the European Communities. For example,

the Terrorisme, Radicalisme, Extremisme et Violence Internationale (Trevi Group) of EC

interior and justice ministers was formed in 1976 to hold regular meetings on common

problems with radical extremist movements. In 1985, the group’s mandate was expanded to

take in other matters relating to cross-border public order and international crime (Lavenex

and Wallace, 2005: 459) and in 1986, an Ad Hoc Group on Immigration was formed. Some

steps towards an EC response to immigration control problems were achieved through these

forms of intergovernmental cooperation. The most significant advance was the adoption of

the Dublin Convention in 1990, yet this measure did not enter into force until 1997.3 In

many cases, these intergovernmental groups had been unable to achieve authoritative

solutions on the growing problems of cross-border crime and mass immigration which

threatened to escalate with eastern enlargement.

By the late 1990s most member states recognised the potential of the planned European Union

to provide an overarching framework for the negotiation and implementation of policy on

immigration issues of common concern, but remained reluctant to cede their traditional

sovereignty in these matters. For this reason, limited competencies only in immigration and

asylum were transferred to the EU under the Maastricht Treaty and were housed in the ‘third

pillar’, Justice and Home Affairs (JHA). Third-pillar decision-making was based on

unanimity and the mode of policy-making was strictly cooperative. The real breakthrough in

the integration of this field came with the Treaty of Amsterdam (1999). Under this Treaty,

JHA was rebranded as a project promoting an Area of Freedom, Security and Justice (AFSJ).

2 http://europa.eu/scadplus/leg/en/lvb/l33020.htm Accessed 3 March 2009.

3 The Dublin Convention established the principle that an asylum seeker must present his or her claim

in the member state in which s/he entered EU territory. By preventing asylum seekers from travelling

to their preferred destinations (known as ‘asylum shopping’) the Convention helped to spread the

burden of care of asylum seekers amongst the member states. It also codified the ‘safe third country’

principle which justified a member state decision to remove an asylum seeker to a third country as long

as this was designated ‘safe’. Human rights advocates have always questioned the legitimacy of this

principle (ECRE, 2006:6) The Dublin Convention was replaced in 2003 by the Dublin II Regulation.

(European Commission 2006, (Dublin)). (For current, updated ‘Dublin’ arrangements, see

http://europa.eu/scadplus/leg/en/lvb/l33153.htm Accessed 30 March 2009.)

http://europa.eu/scadplus/leg/en/lvb/l33020.htm





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In institutional terms, it became a split-pillar field. Along with other areas relating to the

Single European Market principle of the freedom of movement, policy on visas, immigration

and asylum was moved to the first pillar (EC).4 This move enhanced the EU’s influence over

these areas at the expense of the member states’ and contributed to the integration of decision-

making. The Commission, rather than the member state authorities, gained the sole right of

legislative initiative within the EU’s areas of competence and a stronger role in negotiating

agreements with third states. The use of qualified majority voting in the JHA Council meant

that member states no longer had a veto on these matters. Later, the Treaty of Nice gave the

European Parliament (EP) powers of codecision in the areas of visas and judicial cooperation

in civil law matters.5 The Commission’s Second Annual Report (Scoreboard) on the Hague

Programme suggests that the institutional potential offered by the shift to first pillar control

has been used effectively: it noted that good progress had been made in first pillar matters,

including asylum and migration, whereas the resolution of third pillar matters (police and

judicial cooperation in criminal matters; provisions on Europol) had been delayed because of

‘recurrent difficulties and blockages’.6 In first pillar areas the post-Amsterdam arrangements

have permitted a rapid development in policy and in associated institutional capacity building.

Within the context of the EU, early moves towards a European regime on immigration were

established through agreements of the member state heads of state and government in the

forum of the European Council. Three meetings proved to be particularly significant for

subsequent developments: the Tampere European Council (1999), the Seville European

Council (2002) and the Council of November 2004 which adopted the ‘Hague Programme’.

European Council meetings remain important in giving the development of the EU’s

immigration regime fresh impetus. European Councils led by larger member states usually

take advantage of their presidency to set political guidelines for the EU for the years to come.

Both the German presidency of 2007 and the French presidency of 2008 gave a high priority

to European immigration policy, so that many initiatives are currently under development.

The EU is now self-consciously developing a full EU policy on immigration and asylum

(COM (2007) 780). In June 2007 the Commission issued a Green Paper on the Future

Common European Asylum System; in June 2008 a Communication on a common

immigration policy for Europe (COM (2007) 301; COM (2008) IP/08/948).

Nevertheless, the split-pillar arrangements introduced at Maastricht and adjusted at

Amsterdam have contributed to an institutional dislocation of decision-making over security

4 However, Denmark, Ireland and the UK secured opt-outs from the new first-pillar provisions on

asylum, immigration, external border controls and judicial cooperation in civil matters. This means

that they participate selectively in the EU’s immigration regime. 5 The EP may only be consulted over other areas (Lavenex and Wallace, 2005: 469).

6 http://ec.europa.eu/justice_home/fsj/intro/fsj_intro_en.htm accessed 29 August 2008.

http://ec.europa.eu/justice_home/fsj/intro/fsj_intro_en.htm




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aspects of immigration in the EU. In fact, security-based immigration policy may require

coordination across all three pillars of the EU. Prior to the Amsterdam revisions, Spencer

noted that whereas policy proposals on tackling the root causes of migration were being

developed within the third pillar, the policy instruments for tackling identified causes were

located within the first and second pillars. There were no mechanisms in place to ensure that

the migration consequences of policy options could be taken into account in the process of

policy development (Spencer, 1996:6, cited in Boswell, 2003: 626-7). While Amsterdam

resolved some of these issues, the continued divisions between the first and second pillars and

the development of new aims in EU immigration policy means that this institutional

‘capability-expectations-gap’7 persists. In the last decade, the EU has increasingly looked

beyond its own territories to an ‘external dimension’ of EU cooperation over migration

control (Boswell, 2003: 619; Lavenex, 2006). This approach, referred to below as a ‘beyond-

borders’ strategy, attempts to persuade migrant-sending countries and countries providing

transit routes for migrants and refugees to adopt ‘EU-friendly’ migration policies. In

particular, the decision of the Seville Council (2002) to require migration agreements to be

incorporated into trade agreements with third states is increasingly bringing together

immigration issues dealt with under the first pillar with second pillar (CFSP) business.

The multilevel nature of immigration competencies has further fragmented the

institutionalisation of European immigration control. Generally, EU actions within AFSJ

remain supplementary to those of the member states and are restricted in scope to issues of

serious cross-border crime, including illegal immigration. Member states currently retain

significant competencies, particularly in relation to labour immigration. Regional and local

authorities are responsible for much of the day-to-day implementation of immigration policy

within the territory of the member states; while, as we will see below, the EU is developing a

framework for coordinating and implementing security-related policies at the EU’s external

borders. Taking the split-pillar and multilevel features of European immigration control

together, this piecemeal and fractured development has resulted in a pattern of loose

institutionalisation, with a range of institutions operating with different remits and

competencies and linked in different ways with the overall aim of creating an immigration

regime which supports internal security.

7 This application of Hill’s original CFSP concept is attributed to Andrew Geddes ‘Controlling

immigration in an integrating Europe: policy-making, implementation and the dual character of

European integration.’ European Consortium for Political Research, Joint Sessions of Workshops

Copenhagen, 2000, cited in Boswell, 2003: 621.




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EU strategies and policy tools for immigration control: ‘second’ and ‘first’ order change

Five key strategies can be identified in the EU’s approach to developing immigration

controls: harmonisation; securitisation; militarisation; deportation; and beyond-borders

initiatives (Hogwood, 2008). The initiatives in these categories are not completely

chronologically distinct as the EU has continued to develop the earlier approaches –

harmonisation, for example – at the same time as introducing more recent ones. Up until the

1990s, these new developments served the aims of an interpretive framework that had been

established since the 1970s, formulated around economic conceptions of foreign incomers and

residents. From the turn of the century, though, strategy development reflected the new

interpretations of security threat in the paradigm shift described above. In a pattern of

development that can be equated with Hall’s ‘second order’ change (Hall, 1993: 280),

existing strategies of harmonisation and securitisation (with intra-EU application) have been

supplemented in the early 2000s with strategies of militarisation (with external application),

agreements on deportation and the rapid development of beyond-borders initiatives. The

recent deportation initiative has tipped a delicate balance between the perceived needs of

human and civil rights on the one hand and of security on the other; and many of the beyond-

borders developments represent an extension of the control agenda. Within these broad

strategies, policy settings have undergone a continuous refinement to increase the

effectiveness of the policy aims (‘first order’ change, idem). Since 2001, observers have

noted a general ‘hardening’ of the tools of control of the EU border system (Guild, 2006).

Harmonisation

Harmonisation of EU border control refers to the coordination of member state rules

governing the entry of foreign incomers to their borders. In immigration matters (as in other

policy areas) the EU has complemented this rationalisation of the member states’ legal

measures with new co-ordinating fora and institutions. At its inception, the EU had no legal

framework of its own for the regulation of immigration, but was faced instead with a welter of

different legal frameworks at the member state level. It began its engagement with

immigration control by trying to resolve some of the contradictions in the different member

states’ laws to provide a basis for cooperation. It also began developing its own jurisprudence

by filling in some of the gaps left unaddressed by member state law: for example, establishing

minimum standards for the reception and care of vulnerable foreign incomers (Council

Directive 2003/9/EC; Council Directive 2004/83/EC). For the security agenda, the most

relevant of the first steps in harmonisation was the delayed entry into force of the Dublin

Convention in 1997. This involved restrictions on the movement of asylum seekers and the




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consideration of their claims within the EU and permitted their return to a ‘safe third country’

(Council Regulation (EC) No 343/2003). More recent steps have involved the adjustment of

member state legislation to allow for liaison with new EU institutions and systems such as

Frontex, VIS, etc.

In the context of the Schengen agreement, policing new, harmonised immigration control

rules inevitably gave rise to new forms of transnational coordination. A range of new

coordinating institutions designed to support the work of Europol emerged from the Tampere

Council (1999). These included the European judicial unit (Eurojust, 2003), a liaison network

of national criminal prosecutors, senior magistrates and judges, established in 2003 to

promote judicial cooperation8 ; the European Police Chiefs’ Task Force (PCOTF, 2000),

established in 2000 and consisting of biennial meetings of police officials to compare best

practice in strategies and tactics9 ; the European Police College (CEPOL, 2001), to link police

academies in member and candidate states and to promote police training programmes.10

These institutions have since been joined by others (as detailed below); all are supported by a

range of data collection and communication systems under continual development. Plans for

the early harmonisation initiatives and linked institutionalisation predate the juncture of

2001-5 and, as such, did not contribute directly to the European immigration paradigm shift.

Indirectly, though, they entrenched member-state interests and contributed institutional ballast

which in the 1990s impeded possible changes towards an alternative reconceptualisation of

immigration, precluding more open and balanced consideration of immigration policy

objectives (see ‘beyond borders’ section below).

A more recent coordination innovation has introduced an executive forum to the EU, with the

potential to contribute directly to a more radical immigration control agenda. The Future

Group, an advisory group on the future of European home affairs policy, was established

under the EU German Presidency in 2007. The Future Group comprises the Vice-President of

the EU; the six interior ministers of the current and upcoming ‘trio’ presidencies; one

representative from the subsequent trio presidency; and experts from individual Member

States as needed. Member states are also invited to make submissions to the group (Council

of the European Union, press release 21.5.07). The role of the Future Group is to draft

recommendations on European home affairs policy starting in 2010, to follow on from the

Hague Programme which expires at the end of 2009. Its remit comprises measures to

8 http://europa.eu/scadplus/leg/en/lvb/l33278.htm

9 http://ec.europa.eu/justice_home/fsj/police/chief/fsj_police_task_force_en.htm

10 http://ec.europa.eu/justice_home/fsj/police/college/fsj_police_college_en.htm


http://ec.europa.eu/justice_home/fsj/police/chief/fsj_police_task_force_en.htm

http://ec.europa.eu/justice_home/fsj/police/college/fsj_police_college_en.htm




14

promote the Council’s efficiency; to improve existing EU regulations; and to coordinate the

activities of the EU and the member states. From its first meeting, the Future Group has been

very proactive on border control issues: the discussions covered options for the future of the

European border management agency Frontex; of joint Schengen border and visa

management; and of border police cooperation with third countries. The Group’s second

meeting, held in June 2007, had an even more explicit security agenda, concentrating on the

increasing overlap of internal and external security. Topics for discussion included general

legal principles in the area of terrorism and security; expanding cooperation with third

countries on security issues; and on the role of EU missions in third countries in coordinating

military, law enforcement and civil protection operations (Council of the European Union,

press release 21.5.07). The Future Group’s first report, produced in June 2008, supports the

EU’s general goal of a common European immigration and asylum policy. It upholds all of

the EU immigration control strategies in use at the time of writing (that is, all except the

deportation strategy). It suggests new policy control instruments (for example, ‘E-borders’

controls exploiting the potential of new biometrics technology) and the upgrading of existing

systems such as Eurosur and Frontex (Future Group, 2008). The development of the Future

Group underscores the shift from member state sovereignty in immigration matters to a

regional immigration regime: it represents a shift from transnational cooperation to

supranational agenda setting in immigration security matters.

Securitisation

With the terrorist challenges of the early 2000s, an increased securitisation of approaches to

migration control has taken place. Securitisation measures have an internal application in that

they have been designed to promote internal security within the boundaries of the EU.

Recently, the EU has backed its securitisation strategy with a deportation strategy. The

Seville Council (2002) marked a definitive trend towards the securitisation of immigration

controls: its conclusions concerning the treatment of migrants were uniformly negative and

restrictive (Bretherton and Vogler, 2006: 48). By 1 January 2002, the European Police

Office (Europol) had been given responsibility for supporting the law-enforcing activities of

the member states in all forms of serious international crime, including illegal immigration

networks. In 2003 the EU implemented the ‘Eurodac’ system for recording and comparing

fingerprints of asylum seekers and illegal immigrants to prevent multiple asylum claims and

other forms of illegal entry. Housed in the Commission, it has a computerised central database

for comparing the fingerprints of asylum applicants and a system for the transmission of

electronic data on individuals’ fingerprints and personal details between member states and

the database. Data on asylum applicants are kept for ten years, or until the individual is




15

naturalised in the host member state. Data on illegal border entrants are kept for two years, or

until the individual leaves the territory of the EU or receives a residence permit or citizenship

of the host member state (Council Regulation (EC) 2725/2000).

In the wake of the 2004-5 terrorist offences on European soil, steps were taken to enhance the

Schengen Information System (SIS)11

and to effect better cooperation with other agencies,

including Europol and Eurojust. Amongst other things, the new rules required member states

to record all transmissions of personal data (instead of one transmission in ten) and to hold

these records for up to three years (Council Regulation (EC) No 871/2004; Council Decision

2005/211/JHA). A more advanced system, SIS II, taking into account the challenges posed

by enlargement and also new advances in information technology, has been under

development since 2001 and is expected to become operational soon.12

A Commission

proposal has also sought to open access to the Visa Information System (VIS) to member

state officials engaged in internal security and also to Europol (COM (2005) 600). The

continuous adjustments to and upgrading of the SIS and VIS systems are representative of

Hall’s ‘first order’ change in policy settings (Hall, 1993: 278).

Securitisation measures have been consistently pursued since the Seville Council. The

Commission’s Green Paper on the Future Common European Asylum System suggested the

creation of roving teams of asylum experts to help distinguish genuine asylum seekers from

illegal immigrants at border areas, possibly to be coordinated by a European support bureau

(COM (2007) 301). On 17 June 2008 the Commission issued a Communication on a common

immigration policy for Europe. The communication named security as one of three themes

around which the principles of a future common immigration policy should be organised. The

security theme comprised: a visa policy that serves the interests of Europe; integrated border

management; stepping up the fight against illegal immigration and zero tolerance for

trafficking in human beings; sustainable and effective return policies.13

11 The Schengen Information System (SIS) had been in operation since 26 March 1995, the date on

which checks at internal borders were abolished for countries included in the Schengen area. Article 93

of the 1990 Schengen Convention states that the purpose of the SIS is to maintain public order and

security, including state security, and to apply the provisions of this Convention relating to the

movement of persons. 12

http://europa.eu/scadplus/leg/en/lvb/l33020.htm accessed 3 September 2008. 13

The other two themes noted were prosperity and solidarity (COM (2008) IP/08/948; Council of the

European Union, JHA 11653/08: 9).





16

Militarisation

It can be argued that recent initiatives have moved beyond securitisation measures to promote

internal security to a militarisation of migration controls – the deployment of techniques and

equipment more commonly used in the defence of territorial borders against invasion from

outside states. This has contributed to an externalisation of EU immigration security controls,

both new features of the new interpretive framework for the European immigration regime.

Around the mid-2000s, new, proactive, military-style defences began to be introduced to the

EU’s border control measures. In 2004, the European Agency for the Management of

Operational Cooperation at the External Borders of the Member States of the European Union

(Frontex) was established. On behalf of the member states, Frontex carries out risk analysis

on border vulnerabilities; coordinates the member states’ operational cooperation over

external border management; sets common standards for the training of border guards and

helps member states to meet these; keeps abreast of new research, developments and new

technologies for surveillance; provides assistance to member states facing immigration

emergencies at short notice; and helps member states with the organisation of joint return

operations.14

In July 2007 measures for the formation of rapid-reaction border intervention

teams (RABIT) were introduced, allowing member state border guards temporarily to assist

one another on the request of a member state ‘faced with urgent and exceptional situations

resulting from a mass influx of illegal immigrants’. Once a member state request is lodged,

the Executive director of Frontex takes the decision whether to launch an intervention. If it

decides to go ahead, Frontex draws up an operational plan under consultation with the

member state concerned and makes arrangements for deployment of the teams and Frontex-

based liaison officers within five working days of the issue of the request. Frontex determines

the composition of the teams and provides relevant training. Team members may consult the

host member state’s databases and may use force where necessary in carrying out their tasks.

The Hague Council conclusions were referred to explicitly to justify the RABIT regulation

(Regulation (EC) No 863/2007). In February 2008, the Commission proposed the

development of a European Border Surveillance System (EUROSUR) designed to increase

the reaction capacity of border authorities in the fight against illegal immigration. The

proposed measures included the use of cutting-edge technologies for surveillance, including

satellites, unmanned aerial vehicles / UAVs, etc. The proposal identified the EU’s southern

and eastern maritime borders as priority areas for the deployment of such defensive measures,

14

Europa EU ‘Frontex’ http://www.frontex.europa.eu/legal_basis/ ;

http://www.frontex.europa.eu/origin_and_tasks/tasks/ Accessed 2 September 2008.

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Regulation&an_doc=2007&nu_doc=863

http://www.frontex.europa.eu/legal_basis/

http://www.frontex.europa.eu/origin_and_tasks/tasks/




17

particularly the Mediterranean, the South Atlantic (Canary Islands) and the Black Sea (COM

(2008) 68).

Deportation

The Seville Council (2002) established a further precedent in EU immigration policy: the

principle of repatriation of illegal immigrants and failed asylum seekers. An emotive and

controversial policy tool in the context of liberal democratic states, the EU has recently

passed legislation to permit the deportation of illegal immigrants from EU territory. On 18

June 2008 the European Parliament finally adopted a compromise draft of the controversial

‘Return directive’, which had been under negotiation for three years.15

The length of time

taken to turn to the European Council decision into a compromise draft bill is testimony to the

controversy that has surrounded this principle. The draft directive lays down minimum

standards for the handling of illegal immigrants, but allows member states to retain or adopt

measures that are more generous towards illegal immigrants. It aims to encourage voluntary

return of illegal immigrants to their countries of origin, but makes provision for deportation in

the case of intransigence. It also establishes rules on re-entry, banning return within a period

of five years, or longer if the individual is deemed to represent ‘a serious threat to public

safety’. Its most controversial measure allows illegal immigrants to be held in custody for up

to six months before deportation. National authorities are also allowed greater flexibility in

applying the directive in ‘emergency situations’ (European Parliament, 25 June 2008). The

UN high commissioner for human rights has attacked the new law for failing to provide

sufficient protection for the vulnerable. Leading representatives of developing countries have

also strongly criticised the law. Moreover, the human rights organisation Amnesty

International has claimed that the Return directive ‘sets an extremely bad example to other

regions in the world’ (Phillips, 2008).

15

The vote was passed under the co-decision procedure with 369 votes in favour, 197 against and 106

abstentions. The Return Directive does not apply to Ireland or to the UK because of opt-outs from the

Treaty. The UK has argued in favour of tougher and less bureaucratic EU returns legislation (European

Parliament (2008) Return of illegal immigrants debated as MEPs weigh up ‘return directive’ 17-18

June 2008

http://www.europarl.europa.eu/news/public/story_page/018-31734-168-06-25-902-

20080616STO31733-2008-16-06-2008/default_en.htm ; European Parliament (2008) Immigration:

MEPs and the "return" directive in depth. Parliament adopts directive on return of illegal immigrants

25 June 2008 http://www.europarl.europa.eu/news/public/focus_page/018-32673-177-06-26-902-

20080625FCS32672-25-06-2008-2008/default_p001c001_en.htm Accessed 21 August 2008).

http://www.europarl.europa.eu/news/public/story_page/018-31734-168-06-25-902-20080616STO31733-2008-16-06-2008/default_en.htm

http://www.europarl.europa.eu/news/public/story_page/018-31734-168-06-25-902-20080616STO31733-2008-16-06-2008/default_en.htm

http://www.europarl.europa.eu/news/public/focus_page/018-32673-177-06-26-902-20080625FCS32672-25-06-2008-2008/default_p001c001_en.htm

http://www.europarl.europa.eu/news/public/focus_page/018-32673-177-06-26-902-20080625FCS32672-25-06-2008-2008/default_p001c001_en.htm




18

Beyond borders: institutionalising the ‘export’ of borders16

The fatal flaw to all of the EU’s harmonisation and institutional capacity-building initiatives

is the fact that these are attempts at a regional solution to a global problem. The EU can

directly influence only its member states, whereas the roots of its perceived immigration

security crisis lie largely with individual and government decisions made beyond the

territorial borders and legislative and judicial ambit of the EU. Moreover, there is a

fundamental incompatibility between the EU’s interests in developing its immigration regime

and the interests of those outside individuals and governments. Many third country nationals

(TCNs) want to migrate to Europe: Europe largely wants to prevent them. In 1996 the

demographer Salt noted that south-north migration would continue unchecked because ‘no

suitable forum exists for bringing sending countries into a dialogue with European states on

migration-control policy.’ (Salt, 1996: 123). This is changing with a range of measures

introduced by the EU effectively to extend the reach of its immigration policy beyond its

territorial boundaries.

The EC has been attempting to influence the migration behaviour of sending states since the

late 1980s, but early initiatives failed to take off (Lavenex, 2006: 333; see also Boswell, 2003:

621, 624-5). It is only since the turn of the century that the EU has built a ‘beyond borders’

approach into its immigration policies with any real consistency. Boswell helpfully

distinguishes two categories of the ‘external dimension’ of Europe’s immigration policies:

control policies and preventive policies. Control policies ‘…essentially externalize traditional

tools of domestic or EU migration control’, extending the reach of controls on e.g. borders,

illegal entry, migrant smuggling and trafficking. Measures include the introduction of carrier

liability and sanctions; the siting of host country national liaison officers at airports in

sending countries to check document controls on outgoing passengers; and controversial

proposals for ‘off-shore’ asylum reception centres. These foresee a ‘contracting-out’ of the

processing of asylum claims to third states that are potentially less liberal and democratic than

EU member states and therefore less constrained by humanitarian concerns (Lavenex, 2006:

343-4).17

Driven by member state interests as well as by successive European Councils,

16

‘Beyond-borders’ measures are referred to in a number of different ways in the literature, including

the ‘export’ of borders; ‘remote control’(Zolberg 2003); the ‘external dimension’ (Boswell, 2003;

Lavenex, 2006); and the more specific ‘pre-frontier’ controls (see Boswell, 2003: 623). 17

Lavenex includes, as a ‘remote control’ policies (2006: 334-344), the coordination of visa policies in

the Schengen group and the ‘safe third country’ principle built into the Schengen and Dublin

arrangements, which justifies a refusal to examine an asylum claim. I have preferred to classify these

as harmonisation measures, since they refer exclusively to actions undertaken by member state

authorities and agents within their own territories. I have classified measures which impact on or




19

beyond-borders control policies have featured strongly in the accession processes adopted in

the EU’s eastern enlargement (Grabbe, 2000, Boswell, 2003: 622); in readmission agreements

with third countries; and more recently in the EU’s European Neighbourhood Policy

(Hogwood, 2009).

Preventive policies attempt to avert or mitigate migration inflows (Boswell, 2003: 619-620).

Preventive immigration control measures have been driven by the Commission’s DG JHA

and by European Councils: in particular the Tampere Council (1999), the Laeken Council

(2001) and the Seville Council (2002).18

These have progressively linked the negotiation or

renewal of trade agreements with requirements on immigration. The Tampere Council (1999)

identified the development of partnerships with immigrant sending states as a key element in

migration management strategies. Agreement on the return of nationals was included in the

Cotonou Agreement (signed 2000) between the EU and 77 African, Caribbean and Pacific

(ACP) countries. Immigration control has since featured in Euro-Med agreements with North

African countries. The conclusions of the Seville Council urged that: ‘… any future

cooperation, association or equivalent agreement which the European Union or European

Community concludes with any country should include a clause on joint management of

migration flows and on compulsory readmission in the event of illegal immigration’. The

Council stressed the need for the EU to engage sending and transit countries in joint

management and border control, as well as readmission, and to provide technical and

financial assistance to achieve these aims. (Council of the European Union (2002) 13463/02;

Lavenex, 2006: 342).

Boswell argues that although the EU is still struggling to define consistent forms of

cooperation and policy tools to meet its various goals in migration policy, its EU structures,

combines with electoral pressures, have tended to prioritise ‘externalisation’ approaches over

preventive ones; and with it a strengthening of a realist policy frame over a humanitarian one

(Boswell, 2003: 620). Beyond-borders preventive measures may certainly help the EU to

overcome its regional limitations by extending its control on a selective basis. Whether they

have the capacity to resolve or even to narrow the fundamental incompatibility in aims

between the EU and third states is another matter. Boswell (2003: 636-38) is cautiously

optimistic about the potential of such measures in that they seek to identify and work on

mutually beneficial areas of partnership and diplomatically rank the EU’s key immigration

involve decisions and actions by state authorities and agents outwith the EU as ‘beyond borders’

measures. 18

European Council, Presidency Conclusions, Tampere, SN 200/99, 15-16 October 1999; European

Council, Presidency Conclusions, Laeken, 14-15 December 2001, SN 300/1/01 REV 1; European

Council, Presidency Conclusions, Seville, 21-22 June 2002, SN 200/1/02 REV 1.




20

control interests second to a central strategy of reducing immigration inflows through

development aid. However, she acknowledges that the success of such an approach depends

on agreement on additional funding and a continued willingness of future European Councils

to drive the beyond-borders preventive agenda. The possibility of a commitment of extra

funds is receding fast with the ongoing impacts of the credit crunch. The strong emphasis on

control measures in the German presidency of 2007 and the French presidency of 2008

suggests that Councils are continuing to prioritise both intra- and extra-EU control policies

over preventive ones. Nevertheless, it can be argued that, even if beyond-borders preventive

measures do not feature strongly in policy priorities for the EU, paradoxically they might still

have an important role to play as an unintended consequence of the newly strengthened

control agenda.

The EU’s ‘external’ migration policy aims: conflicts and priorities

In different applications, both Boswell (2003: 636-9) and Dannreuther (2006) stress the need

for the EU to develop truly mutual migration policy aims with its interlocutors if such policies

are ultimately to be successful. It is argued here that this is unlikely to happen. There are two

reasons for this. One relates to the asymmetries of the EU-third state relationship, which

biases negotiation outcomes in favour of the EU. The second is the relatively low priority

such mutuality is likely to have in the EU’s aims for beyond-borders measures. It is argued

here that, for the EU, mutuality in the development of external migration policy aims is likely

at best to rank third after (i) the successful restriction of migration inflows and (ii) the

reinforcement of the EU’s self understanding and the image of itself that it wishes to project

to the world.19

In this latter view, beyond-borders preventive policies are more likely to serve

as a means to achieve the EU’s normative ends than as a policy aim in their own right.

As Bretherton and Vogler argue (2006: 58): ‘inclusive and exclusive constructions of EU

identity (…) offer contrasting roles for the Union in international affairs’. The EU’s work on

the integration of foreign denizens - with its focus on humane treatment, protection of

minorities and guaranteed rights - corresponds most readily to the liberal values the EU has

traditionally chosen to show the outside world. However, as we have seen, this aspect of the

EU’s immigration policy remains relatively underdeveloped in comparison with its control

measures. The EU faces a quandary here. On the one hand, the EU must both publicise and

enforce the aims of external boundary control if it is to achieve its ends of dissuading large

19

The argument that follows was first presented in Hogwood, 2008: 17-19.




21

numbers of unwanted migrants from entering its territory. On the other hand, the

exclusionary message and the increasingly military-style methods used to effect this policy

expose weaknesses within the EU’s traditional self-image20

. Hazel Smith argues (2002:271)

that the EU is bound to an ethical foreign policy because of its high visibility. Does the same

hold for beyond-borders immigration policy? It is argued here that the EU is using beyond-

borders preventive measures in an attempt to square the circle of its exclusionary immigration

policy aims with its need to project itself as an ethical global actor. The EU is effectively

building immigration prevention methods as compensatory measures into negotiation

‘packages’ with third states. In this way, the moral difficulty of pursuing exclusionary goals

can be offset against the moral integrity demonstrated in the compensatory add-ons. In the

European Pact on Immigration and Asylum proposed in the French Presidency’s work plan (1

July-31 December 2008), a raft of exclusionary measures on border control is offset with a

few inclusionary measures on integration and partnerships with sending and transit states.21

Such compensatory measures should not be confused with the traditional EU strategy of

conditionality. Compensatory measures as described here are designed to bolster the self-

image of the EU internally and externally. Conditionality is designed to modify the behaviour

of third states in favour of the aims of the EU. Immigration policy conditionality has featured

in the accession negotiations for the EU’s eastern enlargement, but to date has only been

hinted at in negotiations with third states. A Spanish-British initiative to make development

aid conditional on third countries’ cooperation on migration control was rejected in the

preparatory stages of the Seville Council (Boswell, 2003: 637; Lavenex 2006: 342).

Nevertheless, the Council Conclusions demonstrated the strength of the member states’

preferences over those of the Commission in that they hinted at the possibility of a future

introduction of conditionality measures. They noted that the EU would carry out a

systematic assessment of relations with third countries which did not cooperate in the EU’s

external border control policy. They stated not only that a lack of cooperation could hamper

20

In this respect the EU’s external border control policy is similar to its fight against internal

corruption. Each, in different ways, focuses attention on collective characteristics the EU hesitates to

acknowledge. 21

The exclusionary measures in the proposed European Pact on Immigration and Asylum include:

more effective combating of illegal immigration (including linked measures for ensuring the removal

of illegal immigrants, and progress on a directive imposing sanctions against the employers of illegal

immigrants); better protection for Europe through more effective border controls; stepping up the

operational role of Frontex to allow the EU to aid member states in tackling crises at land and sea

borders; a careful monitoring of the common policy on visas, with the aim of adopting the Community

Code on Visas and promoting the development of the visa information system (VIS); encouraging

contact between Europol and Frontex to be more effective in combating networks specialising in illegal

immigration; the promotion of Police and Customs Cooperation Centres (PCCCs) among the member

states; a system for the use of radio communications in border areas; joint rail patrols; and

consideration of the use of ‘European police stations’ to coordinate the work of member state officials

in areas where there is a high concentration of population movements (Council of the European Union,

2008 (Presidency):17-18).




22

the establishment of closer relations with the EU, but also suggested, rather ominously, that

non-cooperation might ultimately lead to the adoption of sanctions against the state in

question.

Drivers of the European immigration regime

It is argued here that the institutional development of the EU’s immigration and asylum

policies has favoured the ‘intergovernmental’ institutions over the ‘supranational’ ones.

Specifically, the home and justice ministers operating in the Council of Ministers and the

member state heads of state and government in successive European Councils have occupied

a favoured position over the Commission, the European Parliament and the European Court of

Justice (Lavenex, 2006). As such, it is important to consider the role of the member states

both as drivers of the general institutionalisation of the European immigration regime and of

the paradigm shift around the terrorist attacks of 2001-5.

The member states as drivers of institutionalisation in European immigration control22

From the 1980s onwards, national home and justice ministries had grown frustrated over

restrictions on their capacity to impose controls on immigration. They increasingly looked to

transnational fora within the EU to bypass judicial controls and other forms of public scrutiny.

Prior to the Treaty of Amsterdam the institutional framework for migration cooperation had

been highly intergovernmental. Of the key institutions of the EU, only the intergovernmental

JHA Council had enjoyed any powers of decision-making. The more ‘supranational’

institutions: the Commission, the European Parliament and the European Court of Justice, had

had no substantive role in such matters. Moreover, decision-making in this area had been

shielded from the attention of the media, lobby groups and the wider public through strict

confidentiality. Meetings were held behind closed doors and documentation was not

publicised. This tradition was maintained after Maastricht through the confidential meetings

of the K4 Committee (named after the relevant article in the Maastricht Treaty). This

protected environment encouraged police and ministerial officials to ‘venue-shop’

(Guiraudon, 2003), opting to develop and agree immigration policy control measures at the

transnational venues provided by the EC/EU rather than their more restrictive home venues.

Such venue shopping can be seen to have influenced the gradual transfer of immigration

control competencies from the domestic to the transnational level and to have facilitated the

22

The section which follows is heavily informed by Boswell (2003).




23

broader paradigm shift from the Westpahlian model of regional policy handling situated at the

level of the EU.

A second impact of this development is in line with historical institutionalist expectations. In

most of the EU member states the home ministries had traditionally worked closely with their

justice ministries in the coordination of policies on immigration and asylum. Early informal

patterns of European coordination also involved the police forces of the EC member states. In

consequence, European transnational collaborations have tended to produce policy which

prioritises the aims of security over humanitarian or preventive aims (Huysmans, 2000:757;

Lavenex, 2006). Rather than developing distinctive ‘European’ solutions to migration

problems, in bringing their domestic preferences and practices on immigration control to

European fora, police and ministerial officials simply extended familiar control instruments to

the EU setting.

Given this institutional heritage, it is unsurprising that European immigration policies have

emerged through this transfer of control policies rather than through a more open

consideration of preventive policies (Boswell, 2003: 623, 627). The Treaty of Amsterdam

brought in both new institutional actors and new controls on European immigration policy.

Together with a post-Cold War environment in which engagement with other states carried a

lower degree of political risk (Boswell, 2003: 625), Amsterdam might have provided the

institutional space for new approaches to challenge the control approach which had been

transferred from the home ministries to the JHA. Indeed, it is possible to identify in post-

Amsterdam policy initiatives the voice of the Commission and the European Parliament in

arguing for more preventive measures, as well as a higher quality of humanitarian support for

vulnerable incomers and better integration of resident foreigners. Particularly the

Commission might have championed an immigration policy in which the twin aims of border

control and humanitarian measures achieved a more equal balance. However, DG JHA’s

enthusiasm for a rigorous integration of migration policy aims with external and development

policy was not matched by the DGs for these other areas, as such an expansive interpretation

would have entailed a significant reorientation of existing objectives (Boswell, 2003: 632).23

The Edinburgh Council (1992) proposed to address the causes of migration and refugee

23

Examples include the European Commission Task Force on JHA, which produced communications

on the need to understand the root causes of migration in 1991 and in 1994. However, the

institutionally weak Commission JHA Task Force faced a lack of interest in other Commission DGs

and the European Council and was no match for the control-oriented JHA (Boswell, 2003: 626-7, 632-

3).




24

streams through the EC’s external policy, but set no specific objectives to this end.24

As the

critical moment for a more balanced European immigration policy passed in the failure of the

new institutional potential offered by Amsterdam to bed down, a new critical moment

presented itself. The interventions of Al-Qaeda strengthened the hand of the control

advocates within both domestic and European institutional hierarchies, so that domestic and

EU responses were effective in launching a securitised immigration agenda and entrenching

in through subsequent militarisation initiatives.

The member states as drivers of securitisation

Much of the impetus for the securitisation and externalisation of EU approaches to

immigration appears to have come from the member states themselves. Gallya Lahav (2004:

207-8) argues that the negative discourses that define contemporary European immigration

policy originated in the member states and have been successfully transferred by populist and

nationalist political parties to the emerging EU discourse on immigration. With the terrorist

attacks of 2001-5, negative discourses became mainstream and were voiced particularly by

parties of the centre right. A stronger prioritisation of security concerns over civil liberties

became evident in numerous policy and legislative initiatives adopted in member states.

Legislation on internal security introduced in the UK, France and Germany has been

described as, ‘panicked, ineffective, exaggerated, authoritarian and in breach of civil rights

conventions’ (Haubrich, 2003:7). Many of the new laws had considerable implications for

foreign incomers and foreign denizens. This was certainly the case in Germany (Hogwood,

2005b: 10-13). It has been argued that leading German political elites saw the anti-terrorism

bill as a good opportunity to override civil rights arguments from the public and the governing

coalition and to push forward restrictive regulations on asylum and immigration (Glaessner,

2003: 51).

European leaders did not confine their efforts to domestic legislation but demanded a

response at EU level. Otto Schily, the German Minister of the Interior, argued that the radical

Islamic threat in Europe had taken on a new and disturbing quality25

and would have to be

met at a European level. He immediately initiated an emergency meeting of the ministers of

the interior of the EU member states and arranged prior talks with the delegations from

24

European Council, Presidency Conclusions Edinburgh, 11-12 December, 1992, SN 456/92. Such

measures did not feature again in European Councils until the Tampere Council of 1999. 25

Press conference given by the FRG’s Minister of the Interior Otto Schily on 14 March 2004.

www.bmi.bund.de (accessed 050305); Interview by Schily with Peter Frey (ZDF) on 14 March 2004

www.bmi.bund.de (accessed 050305).

http://www.bmi.bund.de/





25

France, Italy, Spain and the UK.26

Shortly afterwards, Germany initiated a special meeting of

the interior ministers of the EU to discuss asylum policy in the context of the post-Madrid

terrorist threat.27

In fact, leading member states have been instrumental in introducing some

of the most restrictive of border control initiatives at the level of the EU. In the wake of the

Madrid bombing, Spain requested the upgrading of the Schengen Information System (SIS).28

The emergency meeting of the leading member states called by Schily produced an agreement

to work towards a closer coordination of intelligence work across the EU, leading ultimately

to an integrated EU counter-terrorism force.29

A request from a member state led to the

regulation on the creation of Rapid Border Intervention Teams (RABIT) (Regulation (EC) no

863/2007).

Member states not only exerted a strong influence in the securitisation of European

immigration policy, but also on the redefinition of competencies between the member states

and the EU. In promoting greater coordination of border control matters at the level of the

EU, member states have initiated a substantial transference of responsibility for immigration

matters to the level of the European Union. Member states have effectively opted to restrict

their own authority in an area formerly a hallmark of national sovereignty – the right to

control entrance to national boundaries – in favour of a collective approach at the level of the

EU. It is difficult to imagine that this transfer of authority might be reversible.

Implications of the emerging European immigration regime

To conclude, in only a few decades, a highly intricate pattern of institutionalisation has taken

place within the area of European immigration and asylum policy. While the fragmented

nature of this institutionalisation makes it difficult at times to traced exactly how policy

strands are pursued, the continued dominance of intergovernmental actors – at first through

default and more recently by dint of their newly entrenched privileged position through the

critical juncture of 2001-2005 – has seen a consolidation of control and externalisation

measures and the relative marginalisation of humanitarian and preventive measures. It is the

officials of the police, the home and justice ministries who have dominated the transnational

26

‘Schily will EU-informationsaustausch verbessern’ press release www.bmi.bund.de (accessed

050305). 27

Interview with Otto Schily in ZDF-Morgenmagazin (Cherno Jobatey) on 30th

March 2004.

www.bmi.bund.de (accessed 050305).

28 http://europa.eu/scadplus/leg/en/lvb/l33198.htm accessed 21 August 2008.

29 www.bundesregierung.de/innenpolitik (accessed 220304).





http://www.bundesregierung.de/innenpolitik




26

epistemic communities30

which shape European immigration policy measures of the ‘first

order’ and their ministers and heads of state and government who contribute to the

development of ‘second order’ strategic developments. The commonality and closed nature of

these epistemic communities helps decision-makers at least to bridge the horizontal

institutional fragmentation caused by the EU’s pillar structure. Meyers plays down the

influence of epistemic communities, claiming that: ‘The influence of professionals is mainly

limited to technical aspects of immigration control policy, such as skill-based selection

systems and mechanisms to prevent illegal immigration’ (Meyers, 2002: 129). However,

given the conflicted aims of European immigration policy, it could be argued that it is

precisely at the ‘technical’ or ‘first order’ level that the space for developments exists. If the

European immigration regime is settling into a new paradigm dominated by control and

externalisation strategies, this will prove a difficult transition for some member states. These

will need time to acclimatise to an interpretive framework that appears harsh even in

comparison with the familiar 20th century paradigm. In this context, it is not surprising that

European leaders are opting to make small, technical and instrumental changes rather than

swingeing changes of strategy.

Taken together, the EU’s securitisation and militarisation strategies may result in a mixed set

of unintended consequences which may help to consolidate the new immigration paradigm,

or, alternatively may to undermine it. In the first instance, the progress achieved on the new

border control institutions may serve to promote confidence amongst political elites to

commit to further steps towards a European immigration regime, thereby strengthening the

potential for future control policy path dependencies. In this case, institutional capacity

building within the securitisation and militarisation strategies will have served as a means of

policy integration and consolidation. Alternatively, they may give rise to ethical concerns

about the potential of the new institutions to transgress the parameters of the current

interpretive framework of the European immigration regime. It could be argued that in

creating institutions such as Frontex, the EU is effectively in the process of investing border

control institutions with a capacity for offensive as well as defensive modes of security. This

is not to suggest that Frontex is currently capable of launching an offensive operation, nor that

the EU has any intention of developing such an offensive capacity for Frontex or any other of

its border security institutions. The point being made here is a more general one: that

30

Peter Haas (1992:3-4) describes a transnational epistemic community as a network of professionals

with recognised policy expertise who are in a position to influence state interests, either by directly

identifying them on behalf of decision-makers or by bringing salient dimensions of an issue to their

attention as a basis for their decisions. In a forum where the decision-makers of one nation state may

influence the interests and behaviour of others, the causal beliefs and policy preferences of a

transnational epistemic community may facilitate international policy coordination.




27

institutions and policy initiatives introduced for one purpose may be ‘subverted’ by new

actors at later stages of institutional development. Another strategy which risks pushing at the

outer parameters of acceptability of the new immigration paradigm is that of deportation.

The inherent conflict of immigration policy aims facing the EU lies at the heart of seemingly

paradoxical combinations of immigration policymaking and implementation strategies

observed in the EU protection policy space. On the one hand the EU seeks to uphold its self-

understanding and its internal portrayal of itself as a security actor, and, on the other hand, its

self-understanding and its external portrayal of itself as an ethical international actor. For

example, this perspective helps to make sense of the ‘Frontex’ paradox. Neil (2009) is

perplexed by the apparent contradiction between the securitisation rhetoric which launched

Frontex and the more technocratic, low-key, ‘risk analysis’ approach which has been used to

implement the Frontex experiment. He reads this as a ‘failure’ of securitisation. It is argued

here that this combination of approach and implementation is perfectly consistent with the

decision-making structures, values and goals of the EU in relation to border control. The

introductory securitisation rhetoric fits in with need to mobilise agreement for executive

decisions within the decisional framework of the EU and the need to justify radical new

approaches to domestic audiences and the wider public. While humanitarian goals do not

currently dominate the immigration agenda, they do persist, and these values and goals lead

EU leaders to seek to underplay the radical potential of the measures in implementation. So,

within this conflicted framework of goals, securitisation approaches are quite compatible with

risk-analysis ones. Taking another example, it is interesting to note that the controversial

agreement on deportation recently passed by the European Parliament was overwhelmingly

justified by its participants by reference to humanitarian issues. As we have seen, the

conflicted framework of goals has also resulted in the ‘offsetting’ of immigration control

measures with humanitarian and preventive measures in wider trade and development aid

agreements between the EU and third states.

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