The Construction Fortress Europe: To what extent does ‘Fortress Europe’ accurately represent the European immigration and border regime developing since 1970? Jonathan Steven Mummery University of Amsterdam
Thesis Supervisor: Darshan Vigneswaran Second Reader: Polly Palmister Wilkins Completed June 2016 as part of MSc Political Science: International Relations Research Project: Controlling Movement and Settlement: Who Belongs Where?
1 Contents:
Abbreviations 3 Abstract 4 Introduction 5 Chapter 1: Literature Review & Methods 9 Chapter 2: Early Developments in the European Immigration Regime 1945-74 17 Chapter 3: The European Immigration Regime through the 1980s and 1990s 29 Chapter 4: ‘Fortress Europe’ and the European Immigration Regime Post 1997 47 Conclusion: 61 Bibliography: 63
2 Abbreviations:
CEAS: Common European Asylum System EAEC: European Atomic Energy Community ECSC: European Coal and Steel Community EC: European Community EEC: European Economic Community EU: European Union EU15: European Union of 15 member states (Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, United Kingdom plus Austria, Finland, Sweden) ENP: European Neighbourhood Policy EPC: European Political Cooperation JHA: Justice & Home Affairs Pillar created in the Maastricht Treaty SEA: Single European Act SIS: Schengen Information System UAV: Unmanned Aerial Vehicle
3 Abstract:
Immigration is one of the most prominent items on the political agenda across the European Union and beyond. Questions of the immigration and border regime of the European Union have once more come to the fore in recent years following the onset of the Mediterranean refugee crisis. Throughout the development of European immigration, border and asylum policy, ‘fortress Europe’ has been used as a metaphor for both the description of individual stages in the development and the overall trajectory of the advancement. With the European Union now experiencing a refugee crisis at its southern borders, it is becoming increasingly important to accurately analyse how Europe reached this point. This thesis, through the construction of a narrative of the development of the European immigration, border and asylum regime, will explore to what extent ‘fortress Europe’ is a useful metaphor for describing and analysing past and ongoing developments. The thesis will draw on existing literature from across academic, journalistic and official sources in order to assess the applicability of ‘fortress Europe’. Ultimately, the thesis will conclude by stressing the utility of ‘fortress Europe’ possesses as a descriptor of a series of policy measures, platforms and proposals which have been developing since the mid 1970s and have now come together with the moves towards a common European immigration regime.
4 Introduction
‘Fortress Europe’ has been used as a metaphor to describe a number of developments within the field of European asylum, border and immigration policy across four decades. Over the course of the past few years there has been a renewed intensive focus on the border and immigration regime of the European Union. The events occurring as a result of turmoil in the Middle East have resulted in a substantial increase in the amount of migrants attempting the perilous journey to the southern reaches of the EU. The sheer number of people attempting the journey have made it incredibly difficult to distinguish between genuine refugees and asylum seekers and those attempting to enter the EU illegally. “Europe is facing its second existential crisis in the space of five years. No sooner had European leaders patched together a solution to the Eurozone crisis, than divisions over how to respond to the surge of refugees and migrants arriving in Europe threatened once again to tear the EU apart” (Hampshire, J, 2015: 8). The scale of the crisis is indicated in yearly increase from 2014 to 2015, with 2014 itself marking an all time high for the amount of people crossing the external borders illegally, “In 2015, Member States reported more than 1 820 000 detections of illegal border crossings along the external borders. This never before seen figure was more than six times the number of detections reported in 2014, which was itself an unprecedented year, with record monthly averages observed since April 2014” (Frontex, 2016: 6).
With diverging perspectives on whether to or how many refugees to accept existing, the response to the crossing of the external borders of these migrants and the future of the Schengen zone had caused significant divisions between Member states. “Europe’s refugee crisis initially drove EU member states apart. Confronted in mid-2015 with a mass inflow of asylum seekers that threatened internal political stability, member states returned to the logic of narrow national self-interest” (Lehne, 2016). In a number of cases, this self-interest included the closing of border crossings, the reinstatement of border controls and even the construction of fences along broad stretches of the border. Thus many have accused the EU of reaching a new restrictive consensus with many prepared to construct a ‘fortress’ in order to prevent these flows from reaching the heart of the EU.
5 “Developments since late 2015 have shown, however, that shared fear might once again facilitate a return to a collective approach, albeit on the basis of a much more restrictive policy” (Lehne, 2016).
The renewed focus of Europe’s borders has occurred in a time when border controls, fences and patrols are being stepped up indicating a hardening of the external borders and a highly restrictive form of collective action perhaps representing ‘fortress Europe’ once more in the making. However, these arguments are far from new. The appeal of the term is evident from its usage across a number of areas over a long timespan within both academic and journalistic literature. The term has enjoyed usage as both a descriptor of current aspects of border and immigration policy as well as a predictor of the future trajectory of policy, with many authors claiming measures taken by European governments represent stages in the construction of ‘fortress Europe’. The continued resurfacing of the term in the field of immigration through the 1980s, 1990s and 2000s poses the question of how suitable the term is for describing the dynamics of the European border and immigration regime. Questions can be raised as to just what constitutes ‘fortress Europe’ following the varied applications in the past.
This thesis will present a narrative of the development of the European immigration regime that has been developing since the 1970s to the present day. based on content analysis and process tracing in order to trace the development of the European border, immigration and asylum regime in order to provide a succinct conceptual definition of ‘fortress Europe’. Through analysis of the key stages in the development of the regime, the series of policy measures and proposals dating back to the 1970s which can be said to constitute ‘fortress Europe’ can be identified. The restrictive practices which have occurred throughout the development look set to continue into the future through further advancement in the European border and immigration regime. Thus, it is important to clarify the term so that ‘fortress Europe’ can be used as a meaningful term of analysis in the coming years.
6 Rationale and Roadmap
What is Fortress Europe: The term “fortress Europe” has been used extensively across both academic literature and advocacy literature. “Fortress Europe” has thus seen usage both as a rhetorical tool for the critique of the developing European immigration and border regime and as a descriptive metaphor for a series of policy platforms and proposals dating back to the 1970s, possessing a restrictive element which have come together in recent years and are now collectively termed as “fortress Europe”.
“Fortress Europe” in many instances has been employed as a means to critique and draw attention to an overly restrictive immigration, border and asylum policy which has come to exist in Europe. It is important to separate these uses of “fortress Europe” from those which aim to use “fortress Europe” as a means of analysing the series of policy proposals and platforms developing since. Within much of the advocacy literature, “fortress Europe” has been used as a rhetorical device in order to draw attention to the restrictive practices occurring at the European level within the field of borders, immigration and asylum without the balance of investigating the wider field of European border and immigration policy. While “fortress Europe” is a metaphor, as will be shown through the thesis by indicating how Europe does not represent a physical fortress, the use of the metaphor in this manner is appropriate for analysing a number of policy streams which have now come together, with restriction as a core element. Thus while it is important to be aware of the metaphorical nature of the term, it cannot be disregarded as a descriptor possessing analytical utility.
Descriptive tool Throughout the development towards a common European approach to immigration and asylum a number of key areas of policy proposals and platforms can be said to represent “fortress Europe” now that a common approach can be determined. Given that “fortress Europe” has been used as a response to a number of areas including migration policy, border management and asylum procedures, it is appropriate that such areas of policy must
7 be included in any conceptual definition of “fortress Europe”. The areas included will therefore be analysed in more depth throughout the thesis through the study of official documents outlining or implementing these policies. In some cases, such sources are complemented by secondary sources aimed at showing how “fortress Europe” has been used to describe these policy proposals and platforms throughout the development of the common European border and immigration policy. The core policy areas that can be said to now represent “fortress Europe” are:
The Schengen Agreement: compensatory measures following the removal of internal frontiers Hardening of external border controls through physical infrastructure (surveillance mechanisms, fences and other physical barriers, maritime patrols Harmonisation of border management: development of common practices and standards including the growth of new bodies including Frontex and more recently moves towards a common European border guard aimed at implementing this harmonisation The gradual culmination of policy streams developing since the restrictive turn in 1970s which have now come together in such a way that it is appropriate to speak of a European approach to immigration and border management.
Critique/ Rhetorical tool: In response to the seemingly restrictive turn in European immigration, border and asylum policy, a substantial field of literature has arisen from advocacy groups such as Amnesty International. Within this section of the literature the primary function of “fortress Europe” is to draw attention to what many believe to be an overly restrictive set of policy measures in the areas outlined above. While referring to the same policy areas, the use of the term in this manner does not seek to add analytical utility for the examination of European immigration, border and asylum policy. Instead the term is used to conjure an image of Europe existing as an area surrounded by fortifications, through both physical measures and restrictive policies designed to prevent and/ or deter migrants and refugees from
8 attempting to access territorial Europe. Prominent international organisations fall within this category of the literature including Amnesty International and the UNHCR.
Through a study of the key stages in the development of the European immigration regime across the four decades in which ‘fortress Europe’ has been used as a descriptive and analytical term, the thesis will trace the development of the aforementioned policy areas and how ‘fortress Europe’ has come to represent a series of measures we see today under the heading of a common European approach to immigration.
The thesis will begin with an account of the existing literature in order to examine the ways in which ‘fortress Europe’ has been applied to the developing European border and immigration regime. Following the literature review, the thesis will provide a narrative study of the central developments in the European immigration and border regime throughout the period which conform to the policy areas for which ‘fortress Europe’ has been used as a descriptive metaphor. In addition to the substantive measures implemented, the overall trajectory can be analysed through accounting for the core issues and stages across the period of development.
The second chapter begins this narrative by examining issues associated with European immigration occurring throughout the 1970s following the liberal immigration and guest worker policies of the 1950s and 1960s. By providing a description of the migration patterns and issues faced by European countries in the wake of such flows, the chapter provides a background to many of the issues covered in later chapters. Furthermore, the origins of many of the structures influencing the restrictive trajectory of development in later years can be traced to this period.
Continuing the narrative, the third chapter investigates the debates and negotiations over competency for immigration, border and asylum measures occurring through the 1980s and 90s, and the role of the Schengen Agreement. As an idea, ‘fortress Europe’ has often been utilised in a way that associates the process of Europeanisation of immigration policy with ever increasing restriction. The 1980s and 1990s were central in establishing the level and
9 trajectory for the Europeanisation of immigration policy and, in addition, the 1990s is the decade in which the idea of ‘fortress Europe’ was most heavily applied to measures taken at the European level. By examining the processes occurring through these years, the applicability of ‘fortress Europe’ as a metaphor for describing these processes can be tested.
The final chapter addresses the stages occurring through the 2000s. Following the Amsterdam Treaty of 1997, the debate over competency had been largely addressed and therefore, this chapter moves on to addressing the substantive measures taken as a part of the three multi annual plans conceived at Tampere 1999, The Hague 2005 and Stockholm 2010. With many of the substantive measures taken as a part of these plans being described as constituent parts or ‘bricks in the wall’ of ‘fortress Europe’, it is important to examine to what extent ‘fortress Europe’ captures the dynamics of the developments.
10 Chapter 1: Literature Review & Methodology
‘Fortress Europe’ has been used in literature in the field of migration since the mid 1980s, continuing through to contemporary events, resurfacing in the wake of almost all of the key events throughout the development of the European immigration regime. Throughout its usage, a wide variety of phenomena have been associated with the creation of ‘fortress Europe’ ranging from the management of the physical external borders of the European Union to the harmonisation of asylum processes. The use of the word ‘fortress’ conjures a certain image of Europe existing as a geographical area surrounded by impenetrable defences and hard physical measures such as high walls or even a moat. While this is not the case, subsequent sections will examine to what extent ‘fortress Europe’ is able to capture the reality of the existing immigration regime. The primary objective of this literature review will be to show that ‘fortress Europe’ exists as a means of describing the current European border, immigration and asylum regime, following the coming together of a stream of policy measures, platforms and proposals running throughout the mid to late 20th Century. However, to this point it has been problematic to establish how and where these policy streams were first established. Furthermore, this literature review will show how other uses, such as in the advocacy literature, the term has been deployed as a rhetorical term rather than an attempt to analyse the processes ongoing with European immigration, border and asylum policy.
The first area in which ‘fortress Europe’ had a prominent usage was in relation to the priority attached to combatting illegal immigration, a central aspect of any definition of ‘fortress Europe’. As shown by Albrecht, “in fact, immigration has become a high ranked European concern over the last two decades. This is due in particular to the opening of borders between East and West of Europe as well as to a debate on safety in Europe, the onset of which is marked by the creation and implementation of the Schengen Treaties and the abolition of inner border controls in most of Western Europe. Strengthening control of the external Schengen borders certainly has been at the centre of the attempt to reduce unwanted and illegal immigration” (Albrecht, 2002: 2). Furthermore, Albrecht uses ‘fortress Europe’ to describe the difficulty which such migrants experience when attempting the journey to reach Europe: “incidents like those of the 58 Chinese nationals found suffocated
11 in a container in Dover or the regular reports on scores of clandestine migrants found drowned on the beaches of Spain and Italy fuel a debate on how best to respond to those enormous risks illegal immigrants evidently are ready to take by attempting to climb over the walls of the fortress Europe” (Albrecht, 2002: 4). The way in which ‘fortress Europe’ is employed here is illustrative of a wider trend in which it is used to describe difficulty encountered by those attempting to enter Europe, that was described as ‘scaling the walls of ‘fortress Europe’ (Broeders, 2007: 71). A further example of how ‘fortress Europe’ has been employed as a metaphor for describing policy measures in this area is in relation to the creation of Frontex, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. “This is particularly reflected in the practice of EU Member States, which have taken many initiatives in the maritime domain to strengthen the external borders of ‘fortress’ Europe. Lately, this practice is coordinated by a European Agency, commonly referred to as FRONTEX, which was established in 2004 in order to coordinate the operational cooperation between Member States in the field of external borders management”. Furthermore, in the same vein, ‘fortress Europe’ has been used as a descriptor for the surveillance networks constructed using the Schengen Information System (SIS), the Visa Information System (VIS) and Eurosur. The EU has been labelled as ‘cyber-fortress Europe’ (Guild, Carrera & Geyer, 2008: 154) and even ‘Panopticon Europe’ following the introduction of such surveillance measures (Engbersen, 2001). While it is clear that throughout the period of this study, surveillance measures were substantially increased and continue to be under the second generation versions of the aforementioned systems, the surveillance measures are part of a wider, more complex system going beyond purely migration oriented functions. While aiding restrictive policies by enhancing data collection, the surveillance networks constructed have purposes going beyond that of enacting a restrictive immigration policy including crime and terrorism prevention Hard physical measures have been taken in an attempt to reduce illegal/ irregular immigration yet Europe has not isolated and insulated itself from international migration flows, and the external borders are not characterized by features suggesting a fortress has been constructed. The ‘fortress Europe’ academic literature in the area of physical borders often centres on the cases and operations undertaken including the Spanish enclaves of Melilla and Ceuta, Operation Seahorse and other naval/ coastguard operations (Pinos, 2009; Andersson, 2015). The wall in Ceuta
12 (Melilla should also be included), which was built in order to defend the enclave(s) from migrants seeking their way into the EU, as the best material representation of the idea of Fortress Europe.
Other authors such as Petra Bendel (2005: 30) Andrew Geddes (2008) and S. Sterkx (2008) use ‘fortress Europe’ in general terms as a means of describing a number of policies reflective of the policy streams to be investigated through the thesis: “as we have seen, border control, sanctions for human trafficking and return policies are still the most important bricks in the walls of ‘fortress Europe’, a fortress that seems tempted to extend its walls even beyond its own borders – as in the case of the debate about holding centres in North Africa, opened by British Prime Minister Tony Blair and rewarmed by the German interior minister Otto Schily”. The way in which Bendel uses the term in relation to such a wide range of policies is indicative of its appeal and the utilty the term has come to possess. Further examples following the same usage in general terms came in the years preceding the completion of the internal market and also as part of the so called ‘securitization of migration’, a phenomenon which was seen in the late 1980s and again in the wake of the 9/11 attacks. Jef Huysmans, a prominent author in the field of securitization, links the completion of the single market to the trajectory of European immigration policy leading towards ‘fortress Europe’. According to him, “the reasoning can be summarized as follows: if we diminish internal border controls then we must harmonize and strengthen the control at the external borders of the European community to guarantee a sufficient level of control of who and what can legitimately enter the space of free movement” and “those who feared that the development of the internal market would lead to a clamp down on the international free movement warned that a ‘fortress Europe’ was in the making” (Huysmans, 2000: 759). Huysmans, citing Ireland and Bigo thus associates the ongoing policy developments within a trajectory leading towards ‘fortress Europe’. Such an idea was furthered by Pinos, again situated in the securitization of migration literature: “what seems clear is that the notion of Fortress Europe confirms a marked trend towards the securitization of the European border(s), both in discourse and practice” (Pinos, 2009: 6).
13 A further area to be included when assessing ‘fortress Europe’ is that of asylum procedure and policy. Asylum represents a prominent theme throughout the utilisation of ‘fortress Europe’ and an important part of its early inception. ‘Fortress Europe’ in the field of asylum has remained one of the largest areas of the literature. The thrust of the argument is that there has been a marked emphasis on making it increasingly difficult for refugees and those seeking asylum to be granted protection in Europe. It is commonly concluded in the literature that European integration in general, and moves towards a common European asylum and refugee policy in particular, are having a negative impact on protection regimes in Europe, making it more difficult for forced migrants to reach Europe and to benefit from asylum. This ‘fortress Europe’ argument is based on the claim that European integration has fostered such restrictiveness through processes such as the curtailing of ‘venue-shopping’, ‘securitization’ and the legitimization of lowest common denominator standards” (Thielemann, E, and El-Enany, N, 2008). One of the earliest uses of ‘fortress Europe’ came in relation to asylum. Alexander Casella uses the term ‘fortress Europe’ as a way to emphasise the potential trajectory for future European asylum policy if current (mid 1980s) attitudes and policy developments continue. “There is little doubt that if the present situation is permitted to endure, it will threaten Europe's generous tradition of asylum and will further encourage the creation of a 'Fortress Europe' mentality which will become increasingly restrictive to North- South population movements” (Casella, 1988: 190). Casella’s argument is hinged on the premise that Europe is increasingly tightening asylum procedures in a response to the growth in number of extra – European refugees.
“With the issue today being immigration, and governments confronting the refugee question (which many would-be immigrants try to take advantage of) as an immigration question, the real losers are the 'genuine' refugees. They are increasingly denied access to determination procedures. Similarly, the 'good' immigrant, having been accepted through legal channels, also has to pay the price of xenophobia created by the disorderly influx of immigrants-cum-asylum- seekers which governments are incapable of confronting, except by negative action.
14 The arguments of ‘fortress Europe’ in the field of asylum have been further developed in light of the externalization of EU policy through policies such as the European Neighbourhood Policy (ENP) and readmission agreements.
“Current EU Member States are very concerned about illegal migration from the East and are putting considerable pressure on candidate countries to set up efficient asylum systems and, more importantly to them, strict border controls” (Phuong, 2003: 641). Therefore, while asylum policy is a constituent part of ‘fortress Europe’ as a means of description, it has also been employed as a means to draw attention to and critique the ‘over restrictive’ turn in asylum policy in the EU. “The immigration and refugee policies currently being developed within the EC and in the separate intergovernmental arrangements attempt to better control external borders and deter new immigrants and refugees, creating what some have called Fortress Europe” (Leitner, 1995: 273). Leitner here suggests that ‘fortress Europe’ has been constructed through the control of the external borders yet also gains longevity through the continuous deterrence of future refugees. While in relation to asylum, ‘fortress Europe’ has often been used as a critique of the resulting difficulty from policy changes, asylum is a core aspect of the European immigration regime and thus must be included in any definition and study of ‘fortress Europe’ as a meaningful descriptor of this regime.
Moving away from the academic literature, ‘fortress Europe’ has received much attention from advocacy groups. In this manner “fortress Europe” has been used as a tool to draw attention to the restrictive practices occurring as part of the development of a common European approach to border management. The advocacy group literature on “fortress Europe” represents a significant piece of of the overall literature yet the uses lack the commonality found within academic literature. The majority of the literature comes in either publicised documents or online articles and newspapers. Prominent groups including Amnesty International and Caritas Europe can be found within the literature along with a number of lesser known organisations. While the usage of “fortress Europe” by these groups has been a long standing phenomenon, a significant amount has surfaced following the renewed focus on European immigration policy following the refugee and migrant crises occurring since 2013 at Europe’s southern borders.
15 The use of “fortress Europe” within the advocacy literature holds a different function to the usage in academic literature. The objective is not to analyse the policy initiatives and measures taken at the European level but to use the term to draw attention to a proposed link between European immigration policy, labelled as an “increasingly impenetrable fortress to keep irregular migrants out” (Amnesty International, 2014, 5) and issues of human rights, humanitarian protection and the mistreatment/ poor conditions of migrants. Further examples of this objective can be seen in the article “Seeking False Security at Fortress Europe’s Gates” published on www.truth-out.org citing “More than 100 humanitarian organizations warned in a recent statement that the current border policy "has left thousands of people stranded in Greece in inhumane and degrading conditions ... with many hundreds of unaccompanied children being held in closed detention facilities or forced to sleep in police cells." (Chen, 2016) Furthermore, Caritas Europe uses the headline “Asylum Seekers are not a threat to Europe - our policies are a threat to them” and goes as far as to claim that ‘fortress Europe’ is slowly transforming into ‘undertaker Europe’ (Caritas 2015). The usage in this manner bears some overlap with the previous discussed academic literature in such that it broadly corresponds to the same policy areas identified as the following:
The Schengen Agreement: compensatory measures following the removal of internal frontiers Hardening of external border controls through physical infrastructure (surveillance mechanisms, fences and other physical barriers, maritime patrols Harmonisation of border management: development of common practices and standards including the growth of new bodies including Frontex and more recently moves towards a common European border guard aimed at implementing this harmonisation The gradual culmination of policy streams developing since the restrictive turn in 1970s which have now come together in such a way that it is appropriate to speak of a European approach to immigration and border management.
16 However, the overlaps do not go much further. The principle objective of the advocacy literature is not the analysis of the substantive immigration policy but the investigation and attempts to draw attention to the hardship of migrants and refugees in a broader sense. The language of the publications and articles thus draws heavily on human rights, issues of humanitarian protection and the mistreatment/ poor conditions for the arriving migrants. Given the recent events occurring at the borders of Europe and the questionable legality of the border operations mounted by many countries affected, both within and outside of the EU policy framework, the advocacy literature has grown into a rich environment for the use of “fortress Europe” as a rhetorical tool. In the case of this part of the literature, the term “fortress Europe” comes across as a rhetorical tool for a number of reasons. Firstly, the usage in recent years has shown that the term is used to describe a set of short term, reactive measures taken within a crisis environment but following that little detail is given to how the actual policy is reflective of a “fortress”, the term is used in order to draw attention to other issues high on each groups agenda. The academic uses of ‘fortress Europe’ have been most prominent through the 1990s and early 2000s with a few uses of the term occurring more recently. Yet the advocacy literature using the term has blossomed online following the developments in the migration crisis following the turmoil in the Middle East. As such, this difference is highlighted between the two areas of literature. Second, by focussing on certain aspects of immigration policy, rather than a holistic approach, the policy is shown to be overly restrictive. The exclusion of information about the advances in asylum policy shows much of the advocacy literature and thus uses of ‘fortress Europe’ to be a rhetorical tool to highlight a partial picture of European immigration, border and asylum policy. This is contrary to the usage in academic literature as ‘fortress Europe’ has come to represent a distinct series of policy measures, proposals and platforms reaching back to the mid 1970s that have come together in recent years indicating a common approach along restrictive lines while still including and acknowledging other moves in the field of humanitarian protection and asylum procedures beyond the narrow scope of the current migrant crisis. A further trend separating the advocacy literature from the academic is in the scope of the analysis. Much of the academic literature using ‘fortress Europe’ employs the term as a measure of the overall trajectory of European immigration, asylum and border policy over a long period of time, encompassing the development in a number of policy areas which have now come together in recent years as a common European
17 approach. Conversely, much of the advocacy literature focuses on smaller geographical locations such as the Hungarian border (Hungarian Civil Liberties Union, 2015) or Ukraine (UNHCR, 2006) or as a reaction to certain situations/ events. An example of such is Caritas Europe, who begin their article with “Caritas Europa mourns the loss of 50 lives of asylum seekers in Austria and over 200 off Libyan shore in the last 48 hours. Their death would have been avoided if a common European safe and legal access pathway were in place” (Caritas Europe, 2015).
The use of ‘fortress Europe’ to this point has covered a wide variety of policy areas reflecting the streams to be investigated in the following chapters. While ‘fortress Europe’ has featured prominently in multiple policy measures, to this point it has lacked the coherence and definition needed to enhance its utility as a useful descriptor of the contemporary environment. Therefore, this thesis will seek to establish the processes which have been ongoing since the 1970s towards what we now see as a series of policy measures, platforms and proposals spanning a number of issue areas which can be labelled as ‘fortress Europe’. The objective being to bring coherence to a term which, while possessing much rhetorical and metaphorical purchase to this point has not fulfilled its descriptive or analytical potential. By providing a narrative assessing the origins and processes guiding the development of ‘fortress Europe’ this thesis aims to bring together the various strands of ‘fortress Europe’ providing a succinct conceptual definition which encompasses the dynamics occurring within European immigration, asylum and border policy today.
Methodology In order to establish and trace the processes ongoing within the various streams of policy proposals, measures and platforms which are said to form the idea of “fortress Europe” as found in the academic literature, the primary methodology of the thesis has been content analysis and process tracing. Throughout the research project a large number of official documents originating both from member state and European institutions were analysed in order to trace the development of the policy platforms so often included in any notion of “fortress Europe”.
18 As “fortress Europe” is not a term that exists within official policy documents, except for attempts to dispel the label, the analysis was not conducted using a search for the term. Instead, through the analysis of secondary sources for the literature review, a list of key policy platforms, measures and proposals was compiled based on common areas labelled as “fortress Europe”. From this point, a search of the online archives of the European Union for documents relating to these policies was conducted. In many cases snowball sampling was the basis for document discovery using documents found in the initial search for the discovery of further documents. Each document was examined for the policy processes occurring in the areas previously established in the literature review. The methodology was conducting in a temporal manner beginning with the ‘restrictive turn’ of the 1970s following the guest worker policies and then sought to follow these policy trails through to the common European immigration policy we see today.
The analysis of primary sources covered a broad field of documents including legislative proposals and white papers, implementing accords and implementation documents, communications issued from a number of institutions including the European Commission, the European Council, the European Parliament and the national governments of Member States. Analysis using such documents proved suitable for the project in a number of ways. Firstly, the wealth of source material available meant that a wealth of material existed in each policy area explored. With a variety of sources existing for the majority of policy measures, it was possible to trace the development and processes occurring, leading to the latter stages of implementation and inclusion in European policy. Second, the longevity of online archives, documents from European institutions and member states dating back to many of the primary initiatives taken towards the idea of “fortress Europe”. With documents existing dating back to these primary moves, the overall trajectory of the process is more easily established. Finally, the existence of scoreboard documents published at consistent intervals following the implementation of agreements and action plans allow for analysis of how successful the implementation had been, and allowed for comparison with secondary sources seeking to examine the same thing.
19 The official documents were primarily collected through the Official Journal of the European Union and searching of the European Union website for the collection of white papers, Council and Commission Communications and scoreboard documents. The scoreboard documents were especially useful as they provided retrospective analysis on the success or failure of implementation allowing for comparison against academic sources. In some cases, documents were not available in English or did not appear as part of the search criteria but websites such as Statewatch often contained the required document. In relation to specific policies and areas, individual websites were consulted such as that of Frontex when assessing the role of the EU in the management of external borders and in the collection of statistical evidence.
The thesis is organised in a temporal manner reflecting the way in which the research was carried out carried out. A temporal narrative is the most appropriate for the study as much of the ‘fortress Europe’ literature points towards a restrictive trajectory and it is important to trace this trajectory through the core stages in the development of the European border and immigration regime. By first establishing how ‘fortress Europe’ had been used as a metaphor, descriptor and term of analysis, and in addition, how widely it had been used, the starting point for the thesis had been established. As stated in the literature review, arguments of ‘fortress Europe’ began with the restrictive turn of the 1970s and so the following chapter investigates the causes and measures implemented giving rise to the claims of ‘fortress Europe’. The subsequent chapter continues the narrative throughout the era in which the debate over competency in immigration was settled. Much of the ‘fortress Europe’ literature closely associates the process of Europeanisation with the restrictive trajectory of European immigration policy towards ‘fortress Europe’. By investigating the core stages in this transfer of competency, the analysis of official documents is able to assess whether such stages are accurately represented by ‘fortress Europe’. The final chapter assesses the developments occurring through the late 1990s and into the 2000s. This period is crucial as it represents the time in which the majority of substantive measures have been implemented, and a substantial amount of these measures are described as contributing to the construction of ‘fortress Europe’. Through the analysis of academic and official sources, the thesis will investigate as to what extent these measures are accurately described by the usage of ‘fortress Europe’.
20 Chapter 2: Early Developments in the European Immigration Regime 1945-74
The early uses of ‘fortress Europe’ surfaced in the mid 1980s and arose as a response to the restrictive turn in European immigration policy in the mid 1970s. The period prior to this restrictive turn, following the Second World War, is crucial within the development of European competency in immigration, asylum and border policy. Within this period Europe is said to have experienced four major migrations: “the periods of war adjustment and decolonization, labour migration, restrained migration, and finally, dissolution of socialism and afterwards” (Zimmerman, 1995: 46). The early post War period witnessed large migratory flows resulting from the territorial and ethnic shifts following the cessation of hostilities and the beginning of the Cold War. The phase of European immigration from 1945 – 1960 did not cause the kind of debate and division of later immigration issues due to the intra European nature of the flows, with the majority being ethnic Germans leaving eastern Europe. From the 1950s to the mid 1970s, Europe witnessed high levels of labour migration, often encouraged and actively recruited through networks designed to bring in cheap, temporary workers from southern Europe and its fringes to northern European countries, especially Germany. The policies of the guest worker, which were in place in a number of northern European states were to have a profound impact on the future development and framing of immigration in Europe and is crucial within the development of ‘fortress Europe’ as both an idea and a critique. The politics of the Cold War in Europe have had a decisive impact on the European immigration regime in a number of ways. A further development within this post War environment was that of the globalized refugee crisis. The politically charged environment of the Cold War in Europe led to the asylum seeker being seen as an issue of politics. As argued by Whitaker (1998), the category of the refugee developed into a selective construction of the legitimate refugee in order to strike a moral blow to the Soviet Union while denying access to many caught up in the globalized refugee crisis. Once the globalized refugee crisis began to impact upon Europe, the restrictive turn in response to the overstay of workers was expanded to the asylum procedures of many European countries. Eastern Europe was to have a greater impact beyond the question of asylum seekers. Following the collapse of the Soviet Union, European immigration policy and the framing of migration began to be shaped by the fear of large scale immigration from
21 the East contributing notably to the issues explored in chapter three. These four phases of immigration in Europe have been both crucial in the development of European immigration policy throughout the same historical period, at a European level and at a national level, and in the development of ‘fortress Europe’ as a descriptor of the resulting policy trajectory and measures.
An Overview of European Policies The European immigration and asylum landscape in the immediate aftermath of the Second World War is far removed from the climate in which the usage of ‘fortress Europe’ is predominantly found. Nonetheless, the origins of the term, policies and attitudes to which it was a response can be traced to this early period. The immediate aftermath of the Second World War is a crucial period in the development of the European immigration regime. “After the second world war, several countries rapidly introduced systems of temporary labour recruitment to speed up reconstruction and to compensate in part for wartime manpower” (Castles, 1986: 762). From 1950 to 1973 the economies of the OECD countries grew on average 5% per year, indicating why the need for foreign workers became so pronounced in the post War years (Stalker, 2002: 153). While there was no coherent Europe wide system of labour migration, a number of the largest European economies experienced some form of labour migration. As a result of the immigration and guest worker policies of northern European countries, the net immigration for Europe over this period reached ten million in contrast to the period from 1914-1949 which had a net outflow of four million (Stalker, 2002: 153). The experiences of immigration in this period varied widely reflecting the sociohistorical differences existing across European countries. The colonial powers, most notably The United Kingdom, France and the Netherlands received an influx of migrants from former colonial possessions who often filled the low skilled and lower paid positions. The UK especially benefitted from the growth in migration from the former Empire. “The [European Voluntary Workers] system only operated until 1951, mainly because other labour sources were adequate: first British capital's traditional labour reserve in Ireland, and from the fifties onwards the inflow of black workers from the disintegrating Empire” (Castles, 1986: 762). Despite the largely postcolonial nature of labour immigration to Britain, in all, 600,000 European ‘aliens’ were recruited to work in Britain in the post-war years (McDowell, 2008: 23). The French experience of labour migration is perhaps the most
22 varied within Europe in this period as a number of differing sources of migrants were utilised. As early as 1945, the Office National d’Immigration was created to organize recruitment of foreign labour and there was a continuous flow of migration until the restrictive turn in the mid 1970s. French labour migration occurred from former colonial possessions including Algeria, Morocco and Tunisia, southern, and south eastern Europe (Spain, Portugal, Yugoslavia) (Castles, 1986). Between 1946 and 1970, two million European migrant workers, and around 690,000 dependents entered France. Furthermore, by 1970, there were over 600,000 Algerians, 140,000 Moroccans and 90,000 Tunisians (Castles, 1986: 763-764). The experience of France is characteristic of the issues of settlement associated with large scale labour migration including the provision of welfare and social services, housing and the rise of xenophobia and racism. Such social issues in France are epitomized by the growth in shanty towns or bidonvilles along with killings of Algerians (32 in 1973 alone) (Castles, 1986: 763-764). The Netherlands, similar to the United Kingdom, experienced a growth in migrant labour both through former colonial ties (Dutch East Indies, Netherlands Antilles and Surinam) and through guest worker programmes via recruitment agreements with a number of southern European countries (Italy, Spain, Portugal, Yugoslavia and Tunisia). By 1977, there were 105,000 workers accompanied by 80,000 dependents from the Mediterranean countries; by 1985, official estimates show that 338,000 persons of Mediterranean ethnic origin presided in the Netherlands with the total number of members of minority groups being around 659,000 (SOPEMI Netherlands cited in Castles, 1986:762). Further developments over decades following the labour migration indicated the difficulty which would be found in reversing the effects of guest worker programmes despite the benefits provided to the northern European economies. Finally, the case of West Germany. The German Federal Republic created the most highly organized of all the European guest worker systems, partly due to the lack of former colonial ties (Stalker, 2002: 153). The German system included the provision of housing by the employers and also a complex legal and administrative framework for the recruitment, processing and the awarding of residence/ employment permits (Castles, 1986: 768-769). The extent of the guest worker programmes in Germany is shown by the sharp increase in numbers of foreign workers present in the country: 95,000 in 1956 to 1.3 million in 1966, rising further still to 2 million by 1970 and 2.6 million by 1973, the foreign population peaked in 1982 at 4.7 million (Castles, 1986: 768-769). Yet, by the mid 1970s, as with the other European countries, the
23 difficulties of integrating the workers, often denied the virtues of citizenship, into society along with family reunification and ethnic divisions were becoming more prominent.
Issues arising from the influx and the Restrictive Turn The origins of the restrictive trajectory so often hailed in later years by the usage of ‘fortress Europe’ can be traced to the aftermath of liberal policies and high number of arrivals shown in the previous section. The suitability of the policies was derived predominantly from the view that the workers would be temporary and return to their country of origin once the employers’ need of them evaporated yet the complexity involved in such systems was underappreciated. The attitude towards guest workers and subsequent difficulties associated with the failure of rotation schemes is summed up in the aphorism of Max Frisch: “we asked for workers, and we got people,” people on whom German employers came to rely, and who formed attachments to Germany (Martin, 2001: 3). The issues caused by the guest worker policies continued to develop over time and became evident in a number of areas including citizenship and political rights, settlement, family reunion, and social and ethnic division.
The economic downturn in the wake of the 1973 oil crisis marked a turning point for the liberal immigration policies characteristic of the aftermath of the Second World War. The subsequent recession and the rise in unemployment, from 2% in the 1960s to 8% in the 1980s (figures for the EU15) lessened the demand for foreign workers and the schemes were abruptly halted (Blanchard, 2005: 3). Following the cessation of the programmes, the deep seated issues began to surface. While a substantial amount of foreign workers did indeed only stay for a limited time period, a large proportion had become rooted in the host country and with the processes of family reunion occurring throughout the period, such migrants were set to remain. “The ban on entries of dependents proved impossible to enforce, for both legal and practical reasons. The official belief that many migrants would leave, and thus alleviate the strains of the growing recession, proved false” (Castles, 1986: 764). The temporary migrant worker schemes prior to 1973 lacked the corresponding assimilation policies necessary for the integration of the large amount of permanent migrants received due to the lack of a strict rotation scheme [with Switzerland being the exception] (Zimmerman, 1995: 58).
24 The foreign workers who entered Europe during this period were limited by a number of practical barriers and legal sanctions in order to maintain the temporary nature of their migration, which ultimately failed. “It testifies to the failure of the whole system of legal sanctions which in almost every country seeks to ensure the temporary character of the immigration - by tying workers to certain jobs, restricting their job mobility, requiring renewal of work and residence permits, inhibiting the reunion of families, etc.” (Böhning, 1974: 158). The desire for temporary labour existed throughout Europe, however, as was the case with the policies and recruitment systems, a high degree of variety existed between the European states in regards to the restrictive turn in the mid 1970s. Switzerland had perhaps the strictest and most enforceable policy of temporary guest workers in Europe throughout the period of overseas recruitment. Policies ensured rapid rotation in order to avoid long term settlement, in combination with the minimal admission of dependents.
“Since 1970, the policy goal has been to ‘stabilize’ the number of foreign workers, first with respect to the total of established plus controlled annual permit holders, and since July 1973, including the number of seasonal workers as well (but still excluding frontier workers). Here we have a policy of rotation under the name of ‘stabilization’ with the aim of keeping the inflow to zero. Any further immigration of workers requires the dropping out of an established, controlled or seasonal foreign worker” (Böhning, 1974: 161).
Despite the stricter policies in Switzerland, the high number of foreign workers remained fairly constant following the 1970s. The peak number of foreign workers in Switzerland was 897,000 in 1973, declining to 650,000 in 1977 yet increasing again to 738,000 in August 1981, more or less maintained ever since (Castles, 1986: 767).
In the Federal Republic of Germany and the Netherlands, policies aimed at inducing rotation were followed. Such policies included legal frameworks for the deterrence of settlement and in some cases financial incentives for returning to the country of origin. Efforts to reverse the long term impact of the guest worker programmes carried on well into the 1980s. “A [German] law of 1982 emphasized two principles for future policy: integration and return. The return aspect was enacted by another law in 1983. It envisaged three basic
25 instruments to motivate return: financial incentives, reduction of return barriers and consultation of potential returners” (Dustman, Bentolila & Faini, 1996: 222). The sociohistorical differences between European countries which led to the divergent policies of recruitment and immigration also led to contrasting approaches to dealing with the complications thereafter. In contrast to the German experience, France was able to launch a return programme as early as 1975 including financial incentives and educational programmes yet French policy also sought to encourage naturalization (Dustman, Bentolila & Faini, 1996: 222).
In comparison to the other European countries implementing returns and induced/ forced rotation policies, France stands out as markedly different in this manner. In the case of European migrants, France maintained a fairly liberal stance largely leaving the return decision to the individual. In regards to foreign workers from outside the European Community, they were entitled to claim financial incentives in order to increase the rate of return. While this policy began in 1975, relatively low levels of foreign settlers took the offer until it was expanded in the 1980s in response to developing social problems (Dustman, Bentolila & Faini, 1996: 222). The relationships and experience of France in this respect differ somewhat from that of Germany due to the colonial history of France and the contrasting policies on citizenship and naturalization.
Despite policies aimed at ensuring the temporary nature of the migration and inducing the return of a substantial number of migrants, they ultimately failed and multiple European countries were left with social and political conundrums regarding the status and integration of the migrant populations. Nonetheless, native employees were able to move up the employment chain into higher paid and higher skilled jobs due to the willingness of foreign workers to undertake the low paid and low skilled jobs. This process resulted in foreign workers becoming indispensable to the European economies, despite the governments’ wishes for their return to the country of origin.
The failure of European countries to develop coherent and suitable integration or assimilation policies was to have a harsh backlash in the years and decades following the guest worker programmes and immigration from former colonial possessions.
26 The European societies found it increasingly difficult to reconcile the large numbers of temporary foreign workers turned permanent rooted migrants with the existing values and social structures. With the family reunification occurring in the aftermath of the guest worker programmes, further issues with second and third generation migrants began to surface in the years following the restrictive turn exacerbating social difficulties within European societies. Evidence of this difficulty is found with the issues of racism, xenophobia and the exclusion of migrant communities in France leading to the establishment of social movements and protests among second generation migrants. “A new generation of activists had entered the public sphere, for the most part the children of immigrants, and they drew attention to social exclusion and marginalization. These changes occurred in a political climate that had witnessed not only the first post-war electoral victory for the Socialists but also significant inroads by the Front National” (Boubeker, 2003: 1). France was not an isolated case in this respect, Germany also struggled with the political conundrum associated with the unexpected settlement of large number of foreign workers.
“Indeed, since the end of the 1970s, Germany had changed into a post-industrial society and then been exposed to the impact of globalization. Subsequently, this society is characterized by socio-economic polarization and urban segregation. It is also characterized by increasing cultural pluralization and by a ‘crisis of political representation’, which is accompanied by the formation of new political cleavages”. (Häußermann and Wurtzbacher 2012, Hradil, 2006, Kriesi, 2008, cited in Loch, 2014: 678).
The restrictive turn in Europe in the 1970s following the economic downturn and the subsequent development of social complications resulting from the influx of foreign workers is crucial in the historical evolution of ‘fortress Europe’. The early uses of the term existed as a form of description, and sometimes a critique of the moves towards a restrictive immigration, border and citizenship regime unfolding in Europe as a response to the issues thrown up by post War migration.
27 Asylum Seekers in Europe The issues associated with the guest worker and post colonial migrations in Europe were not the only cause of the restrictive turn in the 1970s and 80s. The growth in the number of extra European asylum seekers led to tightening and harmonisation of asylum processes across Europe. “Western Europe has been subjected to an increasing irregular flow of asylum-seekers from the third world. This uncontrolled influx, which has now extended to Canada, has reached such massive proportions that it has triggered a generalised defensive reflex in recipient countries” (Casella, 1988: 187). This occurred both at a national level and later European level through the gradual supranationalisation of asylum policy. The period in which this growth of asylum claimants from the third world is situated is also that in which developments towards European competency for immigration, borders and asylum was developing, culminating with the agreement of the Dublin Convention 1990.
In the years following the oil crisis of 1973, within the same period as European governments attempted to reduce the amount of foreign workers through return policies investigated in the previous section, the amount of asylum seekers into Europe was gradually increasing (see Figure 1).
Asylum-seekers 250.000
200.000
150.000
100.000
50.000
0 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87
Figure 1: Number of asylum seekers in Europe 1972-1987 (data from Casella, 1988: 188).
28 The shifting of the origins of the refugees and asylum seekers away from being predominantly European is the principle reason for the difficulties faced in the 1980s. The extra European arrivals required greater resources for support and processing, with decisions taking a number of years and, following a decision, a lack of cooperation with the country of origin in order to facilitate a return. “Previous asylum-seekers had mainly been either Europeans or residents of Europe. The new wave of arrivals came mostly from the third world - Palestinians from Lebanon, Iranians, or Tamils from Sri Lanka. Their arrival required far more processing than that of the previous groups. National bureaucracies, geared for processing a few hundred asylum-seekers a year, were suddenly swamped by the arrival of thousands” (Casella, 1988: 188). “The real problem of irregular asylum-seekers in Europe, as it is perceived today, actually started in 1982 and 1983. It went undetected at the time because there was no mechanism to enable the European countries to compare data and coordinate policies. Thus, each European government tended to view the problem in a narrow parochial perspective and seek either national or bilateral solutions, often at the expense of its neighbours” (Casella, 1988: 188). Difficulties and competing national interests arose from the lack of a unified regional European response to what had now become a European question. The ramifications of this incoherence is shown by the effects of one country changing its policy on its immediate neighbours. Such an instance occurred between Sweden and Denmark: “to stop the inflow rather than change its asylum legislation, Sweden prevailed on Poland and East Germany to close the transit door by imposing a demand for transit visas These measures - which did not affect direct arrivals by air - proved of no avail, partly due to Denmark's position” (Casella, 1988: 189). While the majority of the issues relating to asylum and the development of European competency in the relevant matters will be included in the next chapter, it is important to state the significance of this early period in the context of the restrictive sentiments prior to meaningful steps towards European integration of borders, asylum and immigration policy.
29 ‘Fortress Europe’? The complications caused by the influx of migrants following the Second World War have had many long term implications and thus the restrictive turn in policies was only a response to a limited number of concerns. The social issues and questions of citizenship are situated within the wider debates over the integration of European immigration and asylum policy and the development of European citizenship practice developing in the second half of the 20th Century. Thus the full extent of the implications of the flows in the aftermath of the Second World War also fall within the other historical cases examined in this thesis.
The restrictive turn in immigration policy enacted by northern European countries in the 1970s certainly poses questions in relation to the development of ‘fortress Europe’ as a descriptor for immigration policy. Two crucial points come to the fore within this period. Firstly, the restrictive turn in the admission policies of the former labour and post colonial immigration countries. Second, the denial of rights and virtues of citizenship to the immigrants leading to future exclusion and marginalisation. The restrictive turn in admission policies, evident in the cessation of recruitment drives and promotion of guest/ temporary worker schemes, certainly points in the direction of the erection of restrictive barriers to the migration of people into northern Europe. The trajectory set in the wake of the restrictive turn is supportive of the idea of ‘fortress Europe’ as attention had turned to limiting the number of arrivals in Europe. While this is a very early stage, it marked the beginning of the restrictiveness that came to dominate the number of policy areas which can now be said to come under the auspices of ‘fortress Europe’.
While the issues faced in regards to social problems and the permanent settlement of who were thought to be temporary certainly impacted on the trajectory of future immigration policy, structures created through bodies such as Trevi were able to guide the debate surrounding immigration policy, linking the debate closely with the field of security, a link which has persisted throughout the late 20th and early 21st Centuries. The following chapter will continue the narrative of the development of the European immigration, asylum and border regime through the 1980s and assess the accuracy of the claims of ‘fortress Europe’ arising throughout this period.
30 The focus of the chapter will be on the steps taken towards Europeanisation of immigration policy through the notable treaties and agreements as these represent a central element in the trajectory of European immigration and border policy.
31 Chapter 3: The European Immigration Regime through the 1980s and 1990s
The development of a European approach through the 1980s was central to ‘fortress Europe’ through the focus of European Member States upon certain policy areas within immigration, asylum and borders, primarily the combatting of illegal immigration. The areas in which action took place reflected prior progress made by Member States, building upon previous intergovernmental cooperative frameworks established in the 1970s through the likes of Trevi and the EPC (European Political Cooperation) in the 1980s (ECSC – EEA – EAEC, 1988). It is important to examine the crucial stages in the Europeanisation of immigration and asylum policy in order to provide an understanding of the context of the growth of ‘fortress Europe’ and in response to which policy measures it arose. The growth of Europeanisation of immigration policy in this period is central to work towards a coherent conceptual definition of ‘fortress Europe’ as many of the key areas of policy streams came together in this period.
A common theme running through the various strands of ‘fortress Europe’ is the role that the European Community (EC) and later the European Union (EU) came to occupy within the policy making process. The core developments within European immigration policy leading the creation of a ‘fortress Europe’ can be traced through the various European summits, treaties and agreements from the Single European Act in 1986, the Maastricht Treaty in 1992 and the Amsterdam Treaty of 1997. These stages established where competency would reside both within the institutional structure of the European Union and under which area of the Treaty framework immigration policy would be determined. In a parallel, yet equally as vital, step is the Schengen Agreement of 1985 outside the EC/ EU institutional and treaty framework and subsequent implementation agreement followed by its incorporation into EU law within the Amsterdam Treaty.
The stages of integration in the field of borders, asylum and immigration leading to a greater role for the European institutions in the policy making process, and the practical matters incorporated in Schengen and subsequent action plans represent separate processes yet both contribute heavily to the debates over ‘fortress Europe’. The debates
32 surrounding the nature of policy making in these areas so sensitive to national sovereignty caused much difficulty and division within Europe, often resulting in remarkably slow progress. The central developments in this area range from the growth of intergovernmental cooperation, through the growth of the pillar structure within the Maastricht Treaty to the gradual incorporation of immigration into the community (first) pillar, followed by movement towards the pillar structures’ eventual abolition within the 2009 Lisbon Treaty. The development of the practical side of European cooperation on borders, immigration and asylum is epitomised by the Schengen Agreement and a number of action plans in the years succeeding the Amsterdam Treaty. Schengen is often described as a laboratory for integration and substantive policy separated from the difficulties of the European Community and the division between maximalists and minimalists. The provisions established in the Schengen Agreement and consequent expansion have had a decisive influence on the changes in European and national policy leading to the introduction of a common visa policy, common asylum system, the creation of FRONTEX and more recently, negotiations towards a common European border agency, measures which have often been deemed central to any notion of ‘fortress Europe’.
The period in which the initial movements were being made towards greater cooperation and common policy in immigration were reflective of wider structures developing at the time aiming to enhance political cooperation across the European Community. A prominent example of such developments is the European Political Cooperation, defined in the 1988 document as “the process of information, consultation and common action among the 12 Member States of the European Community ('the Twelve') in the field of foreign policy. Its aim is to maximise the Twelve's influence in international affairs through a single coherent European approach. It is the essential counterpart to progress towards European unity in the Community framework” (ECSC-EEC-EAEC, 1988: 5). The Single European Act 1986 (SEA) in fact put EPC on a treaty basis for the first time albeit removed from the actual procedures of the Community. The globalisation of migration and asylum and its growth as a key policy area within the European community is an important part of the overlap with the existing intergovernmental structures seen in the case of EPC.
33 Another of the antecedent structures influencing the future development of the European immigration and asylum regime is the Trevi Group established in 1976 in order to promote cooperation in counter-terrorism and police matters between the then 12 EC states, the European Commission and the European Parliament. These existing structures are an important explanatory mechanism for the way in which immigration was framed at the European level, contributing both to the process of expanding European competency and the measures to be implemented. The structures of political cooperation which were closely associated with the areas of foreign policy, justice, home affairs and security impacted strongly on the trajectory of immigration policy, with restriction and the fight against illegal immigration central in determining this trajectory.
The Single European Act The Single European Act of 1986 is one of the earliest stages in the progression towards European competency in immigration, border and asylum policy. Areas previously deemed quintessentially national, too sensitive for any kind of supranationalisation, were brought into the European fold albeit on an intergovernmental footing. The SEA, while closely associated with the establishment of a deadline for the creation for the single market, consisted of elements of fundamental importance to the ongoing development of European immigration, asylum and border policy. “Particular impetus was given to the creation of an economic space, but this brought with it greater efforts to develop European level forms of cooperation on migration and asylum from outside the EU. The result was that freedom and security became more closely bound in the late 1980s” (Geddes, 2008: 68). Previous steps had been taken towards this point including the 1967 Naples Convention on mutual cooperation between customs authorities of the six EC member states and European Political Cooperation, a form of intergovernmental cooperation in which groups such as Trevi worked through the 1970s towards improved cooperation in the areas associated with security and home affairs.
The SEA defines the European single market as “an area without internal frontiers in which free movement of goods, persons, services and capital is ensured in accordance with this treaty” (ECSC-EEC-EAEC, 1987: 227).
34 This definition and the associated developments within the SEA period have had a profound effect on the framing of European migration as requiring some form of European level action favoured by the integration maximalists such as Germany, France and the Netherlands. Free movement of persons within the given area of the European Community logically required increased forms of harmonisation and cooperation in the field of immigration and asylum, yet the recognition of this requirement had not been forthcoming prior to the 1980s. The issues associated with questions on immigration are summarised well by Geddes:
“Questions of external frontier control were transplanted to those member states in southern Europe. Greece joined in 1981, while Portugal and Spain joined in 1986. These were becoming immigration countries and are proximate to major sending countries/ regions. There was, however no explicit treaty competence for immigration and asylum policy; there was actually a marked reluctance on the part of some national governments, such as the British, Danish and Greek governments, to extend the remit of supranational institutions into these areas” (Geddes, 2008: 69).
Within the white paper preceding the SEA, the European Commission pressed for increased supranationalisation of immigration and asylum issues as free movement was deemed paramount to the European project. The abolition of controls to encourage free movement is a European benefit and thus nationality was irrelevant. A number of measures were put forward in the white paper of 1985 on the completion of the internal market regarding the external frontiers of the community including police cooperation, visa harmonisation and the common passport. Yet, the commitment to intergovernmental rather than supranationalised policy is evident in a political declaration attached to the SEA: “in order to promote the free movement of persons, the Member States shall cooperate, without prejudice to the powers of the Community, in particular as regards the entry, movement and residence of nationals of third countries. They shall also cooperate in the combating of terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques” (ECSC- EEC-EAEC, 1987: 1077).
35 The SEA affirmed the member states’ desire for intergovernmental cooperation rather than any form of supranationalisation in the areas of immigration and asylum. However, throughout this period, there was a realisation that, along with the steps taken towards the completion of the single market, development of European cooperation in areas beyond the single market, including working towards political union, was required. The momentum given to the European integration project by the SEA provided a further impetus for immigration policy at the European level found at Maastricht and later Amsterdam. The realisation of the need for enhanced cooperation and the European nature of the immigration and asylum problem in order to implement the free movement of persons marked a large step in the growth toward European competency.
Maastricht The Maastricht Treaty of 1992 marked a further step in the growth of Europeanisation of immigration and asylum policy. While still not supranationalising policy, issues regarding immigration and asylum were brought into the treaty framework under the new Title IV. “The Maastricht Treaty formalised, but did not supranationalise, cooperation on immigration and asylum policy. It confirmed executive dominance of this policy area and a limited role for legislative and judicial involvement and oversight” (Geddes, 2008: 88). The willingness to continue working towards greater cooperation, formalised in the pillar structure of the Maastricht Treaty is evident in the ‘Commission communication to the Council and the European Parliament on Immigration’ 1991:
“The prospect, born of the single Act, of a single economic area with no internal frontiers, coupled with the need to guarantee the free movement of persons, has led the Commission, at the instigation of the European Council to set this debate in motion. Such is the aim of two communications on immigration and the right of asylum which have been transmitted to the Council and to the European Parliament: to stimulate discussion on the attitudes and practices of Member States facing similar problems in advance of the intergovernmental conference on Political Union getting down to looking at the new institutional framework within which the problem might be addressed” (CEC, 1991: 2).
36 The primary impact of the Maastricht Treaty was to formalise European wide cooperation on immigration and asylum through the creation of the Justice and Home Affairs (JHA) Pillar. Initially, immigration and asylum fell within the intergovernmental pillar but the inclusion in the EU Treaty framework provided the basis for the later transfer of immigration and asylum policy to the community pillar in the Amsterdam Treaty 1997. Under the Maastricht Treaty, and Article K1 in particular, the following areas were deemed ‘common interest’: Asylum policy; Rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; Immigration policy and policy regarding nationals of third countries: a) Conditions of entry and movement by nationals of third countries on the territory of member states b) Conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment c) Combating unauthorised immigration, residence and work by nationals of third countries on the territory of Member States
The status ‘common interest’ was designated in these areas, stopping a long way short of any form of ‘common policy’ reflecting the compromises made, yet the list begins to resemble the areas covered under ‘fortress Europe’ in the rationale for this project. Under Article K1, Maastricht placed immigration and asylum issues in a mixed bag of issue areas including multiple other internal security questions. Furthermore, with the designation of ‘common interest’, competency and measures were left suitably ambiguous reflecting the sensitivity to national sovereignty which many Member States maintained as opposition to any form of supranationalisation.
The focus given to Article K1, with the parallel development of Schengen, marked a continuation of the intergovernmental cooperation structures seen with the Trevi group in the 1970s. ‘Fortress Europe’ was a prominent theme within migration literature during this period with the selective European development in areas of external frontiers, visas, asylum and irregular migration indicating that these areas must form the basis of any conceptual definition of ‘fortress Europe’, this point is further reinforced with the importance attached
37 to these areas continuing to the current day. Helga Leitner (1995: 273) states that “taken together these proposed provisions effectively reaffirm the position on immigration and refugee issues of the dominant member countries, with an emphasis on deterrence of non- EC nationals, a refusal to make the European Community and its member states countries of immigration”. Thus the period in which these developments were taking place represents the Europeanisation of the restrictive attitudes of the countries involved in the restrictive turn of the 1970s. Furthermore, as Geddes indicates, Europe did not develop competency and cooperation did not occur across the breadth of immigration and asylum measures; European level policy developments only occurred in the fields of visas, asylum and external frontiers (Geddes, 2008: 88). While the actual creation of a ‘fortress Europe’ is contested in this period, the growth of a more European approach does give the claims more resonance as a descriptor as a number of policy areas and proposals were being grouped together, with an element of restrictiveness evident across the board. The incremental nature of European immigration policy during this period partly explained why claims of a ‘fortress’ were so prominent. The initial focus upon the hard aspects of visas and external frontiers, in combination with the harmonisation and restriction of asylum procedures along with a lack of development in the field of legal migration channels indicate a policy regime focused upon restriction. Though, through the continued growth of the role of the European institutions and the supranationalisation of policy, the scope of European immigration and asylum policy would grow.
The Schengen Agreement The Schengen Agreement 1985 is perhaps the most far-reaching event in the development of European immigration policy and ‘fortress Europe’. The integrative step taken by the five original members indicating their willingness to proceed in the laboratory of Schengen is crucial for the ongoing development of European competency and the future form of the European immigration and border regime. Furthermore, the incorporation of Schengen into the EU treaty framework in the Amsterdam Treaty of 1997 marked the start of the shift towards supranationalisation of immigration policy. While the Agreement was signed in 1985, it took another decade for Schengen to be fully implemented. Its inception was fraught with difficulties reflecting the sensitivity surrounding this policy area which had characterised European debate over immigration, borders and asylum on multiple
38 occasions. Such difficulties with the sensitive nature of borders is demonstrated by the animosity of France towards the seemingly liberal drugs policy of the Netherlands; thus delaying the implementation of Schengen through the reintroduction of border controls following concerns over terrorism (Easton, 1999). Nonetheless, Schengen is a defining element of the European border and immigration regime under construction through the 1990s.
The development of Schengen - parallel to yet not within the EC framework - reflects the profound difficulties existing in the European polity at the time, evident in the negotiation of the SEA and Maastricht. The requirement for unanimity of the European Council for measures impacting on Home Affairs meant that those Member States less willing to engage in integration were able to put a brake on progress. This is evident in the resistance of countries such as the United Kingdom and Denmark rejecting movement towards supranationalisation of immigration policy, possessing a strong preference for intergovernmental forms of cooperation outside the EC/ EU, a continuation of the trend set in the SEA.
Throughout the 1990s, Schengen in addition to Maastricht is analysed in light of the apparent securitisation of migration in Europe, contributing greatly to the claims of ‘fortress Europe’. Maastricht, taken alongside Schengen is often portrayed as a considerable step in the issue linkage with security through the new Title IV, a prominent feature within the ‘fortress Europe’ literature. Such ideas are most clearly articulated in the securitisation of migration literature, prominent among which is Jef Huysmans, who emphasises this link: “migration has developed into a security issue in Western Europe and how the European integration process is implicated in it. Since the 1980s, the political construction of migration increasingly referred to the destabilising effects of migration on domestic integration and to the dangers for public order it implied” (Huysmans, 2000: 751). The spill over of the internal market into a European internal security question mirrors these domestic developments at the European level.
39 Many more authors use the measures taken under the Schengen acquis as evidence that communitarisation of immigration and free movement has situated them firmly in debates over the EU’s internal security regime. “Communautarization has not only left the conceptual parameters of the security paradigm which characterised the Third Pillar intact, but the latter have now come to define the terms of the free movement of persons in Community law. The Community has welcomed the Schengen project of creating a unified European migration area surrounded by a uniformly controlled border. The states’ evolving security agenda and their restrictive approach to immigration and asylum has gained a legitimate foothold in the debate” (Kostakopulou, 2000: 508). The measures included and the form the negotiations took are reflective of this, as Joly states: “the so-called ‘Schengen’ group, named after an island where the first meeting took place on 14 June 1985, brought together the ministers of the Interior of Belgium, Germany, France, Luxemburg and the Netherlands with the aim of establishing a one visa area. It discusses the question of asylum within the framework of ‘circulation of persons’ and ‘police and security’ issues. European countries are increasingly developing protectionist policies with regards to all kinds of immigration, including refugees” (Joly, 1991: 3-4). Under the ‘Implementation Committee for the States already applying the convention’ section of the Schengen acquis, the following areas are deemed as the priority (General Secretariat to the Council, 1999: 178).
Policy Area Measure External border checks and surveillance Provisions for carrying out checks at the authorised crossing points along the external borders and in the border areas Technical means available at the external borders, in particular for detecting counterfeit documents Determining whether staff levels are adequate for the particular border visited External border checks and surveillance, encompassing mobile patrols as well as systems and methods of stationary surveillance
40 Training for officials, inter alia in the detection of counterfeit documents Measures taken at the external borders visited to combat illegal immigration and crime in general Measures taken against individuals not granted admission at the border of individuals who are illegally on Schengen territory. Means deployed to combat illegal immigration networks Existing forms of cooperation with neighbouring states Administrative organisation of the services responsible for combating illegal immigration and for coordination between these services at the national and local level SIS use at border posts Table 1: Priority measures as established by the Schengen Acquis.
The measures included in Table 1 indicate the focus of the priority measures upon aspects of securing the external borders and the commencement of an efficient surveillance regime at the EU’s external borders. The target of the priority measures indicates a focus upon securing and hardening the external borders, as set out in the Schengen acquis, providing strong evidence of the compensatory measures deemed essential in an area following the abolition of internal frontiers. The association between immigration measures and the growing EU internal security regime, in this case, gives greater credence to ‘fortress Europe’ as a descriptor due to the linkage between security and immigration, borders and asylum policy. The main organs of border surveillance and control that are to be developed in the years succeeding Schengen are a constituent part of any states’ security regime.
41 The Dublin Convention The 1990 Dublin Convention was the one of the first notable elements of the emerging asylum regime of the European Union. The overall utility of the Dublin Convention was to determine which state is responsible for the processing of an asylum application, thus removing the possibility of asylum shopping. The Dublin Convention stopped short of harmonising the asylum application processes across Member States but meant that in a frontier free Europe, only a single member state would be responsible for examining an asylum application. “The principle underpinning the convention was that an application for asylum would be made in the member state in which the applicant had arrived, unless he or she was joining a spouse or dependant in another member state” (Geddes, 2008: 78). The nature of the Dublin Convention has been criticised for pushing the asylum processes to the countries at the periphery or possessing large air or sea ports. Furthermore, “the Dublin Convention offloaded the responsibility for asylum to non-EC ‘third countries’ deemed safe in relation to their compliance with the Geneva Convention” (Geddes, 2008: 78). Geddes goes on further, citing Guild and Niessen (Guild & Niessen, 1996: 120, cited in Geddes, 2008: 78): “the Dublin system began as a logical development of the internal market. The difficulty is that what might have been a solution providing some security to asylum applicants in an integrated Europe is now being used to move asylum seekers out of the Union altogether”. While the Dublin System has been criticised for not going far enough and not producing a secure system for asylum applicants, the processes involved are markedly similar to those in immigration. The Dublin Convention is one of the first steps taken in he European Asylum regime and the limited measures reflect that. Greater progress was to be made in the field of asylum following the enhanced European competency originating in the Amsterdam Treaty, culminating in moves towards the Common European Asylum System consisting of harmonised processes for the examination of an asylum application. The asylum regime of the European Union has come under considerable criticism in the wake of the recent growth in migrant deaths at Europe’s borders and the Dublin Convention and subsequent revisions are prominent targets for this criticism within much of the advocacy literature.
42 Treaty of Amsterdam Perhaps the single most important boost in the Europeanisation of immigration, asylum and border policy following the Schengen Agreement was provided by the 1997 Amsterdam Treaty. Principally amongst the developments in the Amsterdam Treaty was the designation of the EU as an ‘area of freedom, security and justice’. This classification thus entailed measures directly concerning immigration, asylum and borders and consequently raised these issues to the top of the EU agenda conflating them closely with the internal security aspect of European Union policy. Within Article B of the Treaty of Amsterdam, the following passage establishes this aim: “to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” (European Communities, 1997: 8). While decision- making in the field of immigration, asylum and borders remained firmly under Council dominance, with unanimity remaining the deciding principle, immigration and asylum had now been brought within the first ‘community’ pillar elevating the role of the European institutions within the process of policy-making in immigration and asylum.
The negotiations and subsequent agreement of the Amsterdam Treaty bore all the hallmarks of previous debates over immigration and asylum at EU level. The difficulty of reconciling the national interests of minimalists and maximalists was evident in the resistance, and consequent opt out of the British and Irish from the new Title IV with the British affirming their right to external frontier control (Geddes, 2008: 124). Nonetheless, Amsterdam is a pivotal moment in the supranationalisation of immigration and asylum policy and initiated a period in which claims of a ‘common European immigration and asylum’ policy could now be justified. This designation is important for any definition of ‘fortress Europe’. As the EU could now be said to have a common approach, ‘fortress Europe’ as an idea gains greater purchase rather than a Europe existing as an area of similar yet separate fortresses (each possessing a restrictive approach in a number of areas yet lacking in the area of commonality). Furthermore, while unanimity would remain in place for decision-making for at least five years after entry into force of the Amsterdam Treaty, provisions were made in Article 73(o) for the implementation of qualified majority voting in relation to measures on immigration and asylum.
43 These proposals were taken further in later years, especially by The Hague Programme of 2004 committing Member States to change decision-making systems on most immigration and asylum measures by the 1st of April 2005 (European Council, 2005: 1).
The Amsterdam Treaty also incorporated the Schengen Acquis, consisting of the Schengen Agreement of 1985 and a number of implementing accords, into the European Treaty framework thus becoming community law. The most pivotal element of the incorporation of Schengen into EU law was the requirement of all future Member States of the European Union to agree to Schengen in full. Through this requirement, the European immigration and asylum policy would have to be transplanted into national law as a requirement of accession and thus whole hearted participation in the European internal security regime would be ensured (Geddes, 2008: 128).
Externalisation of Immigration Policy Following the developments outlined above, EU immigration and asylum policy took another step forward, that of externalisation. As early as the Tampere action plan in 1999, it was emphasised that a comprehensive approach to migration required cooperation with countries not in the EU. Recognition of the need for a wider approach to migration took shape as early as the early 1990s with the geopolitical widening of migration problems. The end of the Cold War sparked widespread fears in Europe of waves of uncontrolled migration of those formerly under the regimes of Eastern Europe and the USSR. Although these ‘waves’ did not occur, the fear alone initiated action to export European policy beyond the territorial borders of Europe. This can be seen in a number of areas including the requirement for new EU members to accept the measures of the Schengen Agreement and the development of the European Neighbourhood Programme.
From 1989 onwards, the question of large scale East – West migration was high on the agenda in the ongoing debate over European immigration and asylum policy. The fear of the economic and social difficulties that would be faced by the EC/ EU Member States was a prominent theme within the securitisation of migration seen in the previous section. “Post- Cold War alarmist stories about ‘floods’ and ‘invasions’ fuelled a security oriented perception of eastern enlargement” (Geddes, 2008: 174). Following the progress made at
44 Amsterdam in 1997, immigration and asylum became an important aspect of the accession negotiations and “applicant states were obliged to adopt the formal conventions and instruments, informal and non-binding measures, and the agreed elements of draft instruments that were in negotiation” (Geddes, 2008: 174). With the accession agreements incorporating entry into Schengen, the process was characterised by the development of the future external borders with extensive training regimes and implementation agreements for the physical aspects of border management as the first stage, followed by the implementation of the Dublin Convention on asylum applications and finally, the lifting of border controls at the new internal frontiers. The requirement for countries seeking EU accession to be full members in the European immigration and asylum measures is a means by which the previous difficulties of national differences on the scope of policy can be avoided in the future.
The European ‘neighbourhood’ encompasses countries ranging from Belarus to Morocco and is an attempt to influence migration flows through the development of cooperative partnerships with those countries on the periphery of Europe. Many of these neighbouring countries are either in close proximity to the primary sending regions or sending countries in their own right and thus the development of an effective ‘neighbourhood’ is crucial in the ongoing stability of the European immigration regime. Mention of the crossover of immigration and foreign policy occurred as early as 1994 with the ‘communication on immigration and asylum policies’ stating that “a comprehensive approach to migration pressure requires coordination of action in the field of foreign policy, trade policy, development cooperation and immigration and asylum policy of the Union and its Member States” (CEC, 1994: 14). “Together these various partnership initiatives are part of an attempt to form a coherent EU approach to migration management that is strongly focused on border management and measures to deter flows of irregular migrants and asylum seekers, and seeks to export EU action to neighbouring transit countries or countries of origin” (Geddes, 2008: 177).
The externalisation of EU policy, as with the majority of EU immigration and asylum policy, has often been included in notions of ‘fortress Europe’. Many in the literature see externalisation as evidence of ‘fortress Europe’ spreading restrictiveness beyond the
45 territorial borders of Europe and thus representing an extra layer of restriction. ‘Fortress Europe’ in this case is seen to be expanding as Sterkx states: “migration is being stopped by means of measures being taken in countries of origin and transit. Fortress Europe is expanding: the territory and the borders of third countries are new sites for EU governance” (Sterkx, 2009: 136). The implementation of an externalised EU immigration and asylum policy is a more recent development and is still occurring today with the most recent EU migration deal with Turkey - a potential further example of the expansion of the border regime and further reinforces the label of ‘fortress Europe’.
‘Fortress Europe’ The usage of ‘fortress Europe’ grew immensely through the 1980s and 1990s both describing individual measures implemented such as the compensatory measures associated with the Schengen Agreement and also as a means to describe the trajectory of the ongoing development of the immigration and border regime. It is clear that restrictive practices were high on the agenda through the linking of immigration and security, the focus on combatting illegal immigration and the harmonisation of border controls. Thus the accuracy of ‘fortress Europe’ as a descriptor of both the measures and the trajectory was gaining traction. Much of the foundation work for the policy platforms said to constitute ‘fortress Europe’ today were laid in this period and were becoming closely entwined through the Europeanisation of these policy areas. The way in which compensatory measures and developments in asylum policy were primarily based on restriction without a flanking measures to balance out the restriction, ‘fortress Europe’ certainly played a role in drawing attention to the restrictive nature in this period. Yet official documents showed how the EC was determined to rid itself of such claims. As early as the 1988 Rhodes Council, the European Council sought to dispel the idea of a ‘fortress’: “the internal market will not close in on itself. 1992 Europe will be a partner and not a ‘fortress Europe” (Handoll, 2995: 357 cited in Geddes, 2008: 77). Further attempts at the European level to invalidate these claims occurred in later years. “After three months of discussions, the French Presidency took the extraordinary step (for the third pillar) of issuing an explanatory memorandum commenting on the general objectives of the proposal and the specific meaning of Articles 4, 7 and 8. The general objective was to show that along with control of migration came “a genuine effort to strengthen the rights of LTRs; it was necessary to soften the image of a
46 ‘fortress Europe’ shut off from the rest of the world and not very open toward third-country nationals” (Peers, 1998: 1255). The way in which attempts were made to dispel the idea of ‘fortress Europe’ indicate that it was, at the time, thought of as a means of critique.
Yet through this period, ‘fortress Europe’ began to develop into a metaphor for the description of the regime gradually taking shape within the EU, a usage of ‘fortress Europe’ which would continue to develop into the 21st Century.
47 Chapter 4: ‘Fortress Europe’ and the European Immigration and Asylum Regime Post 1997
In the aftermath of the Amsterdam Treaty, it became justified to talk of a ‘common European approach to migration’. Yet, the implementation and substantive elements of such a common approach were still underdeveloped. Through the first decade of the 21st Century, the debate over European immigration and asylum policy moved from the discussions of competency to those of substantive measures and means of implementation. From the Tampere Programme of 1999 to the more recent Stockholm Programme of 2010, multiple steps have been taken in the pursuit of a common European approach to borders, immigration and asylum, and further to this, such a European approach has been exported further to the new Member States of the 2004 and 2007 enlargement processes. This chapter analyses the developments in European immigration, asylum and border policy in the years following the Amsterdam Treaty with a focus upon the Action Plans of Tampere 1999, The Hague 2004, Stockholm 2010, the enlargements of 2004 and 2007 and finally the instruments of control and restriction found at the external frontiers of the EU.
The measures implemented throughout the 2000s have been heavily analysed yet also contribute to ‘fortress Europe’, with the growth in substantive measures, a term to describe the wide variety of policies gains greater importance. This has been the case in relation to the external borders, surveillance networks, maritime operations and also in response to measures implemented as part of the Common European Asylum System (CEAS). The action plans throughout the 2000s and the measures taken as a part of them show a more holistic approach to European migration policy than had been observed in the 1980s and 1990s, with ‘fortress Europe’ now describing a regime that goes beyond simple restrictive practices on migrant entry. Now that competency was not dominated by the Council through the requirement for unanimity, measures beyond those aimed at simply managing the external borders could be put forward. Such a holistic approach can be seen within the CEAS with attempts to establish minimum and subsequently common standards. Such measures provide ample evidence that the developing regime, despite consisting of restrictive elements, began to go beyond the parameters of ‘fortress Europe’ seen in the previous
48 decades. With the growth in measures beyond management of the external borders, ‘fortress Europe’ can be said not to simply be a byword for restriction, but a means of analysing a series of policy measures and platforms, which with no doubt possess a restrictive element, yet defines a much broader regime of immigration, asylum and border policy.
Vienna & Tampere The Vienna Action Plan 1999 and subsequent Tampere Programme 1999 aimed at giving practical implementation to the progress made in the Amsterdam Treaty. The importance of the Amsterdam Treaty to the developing European immigration and asylum regime was reinforced by the ambition shown in the 1999 Action Plan and Programme as a way of maintaining momentum in the aftermath of Amsterdam. In all, the Tampere Programme contained around 60 measures aimed at enhancing the Area of Freedom, Security and Justice through development of the EU’s justice and home affairs policy.
The measures included in both Vienna and Tampere are evident of the primacy now given to a balanced and flexible approach to the areas of immigration and asylum. In previous agreements and treaties - while still under the auspices of intergovernmental cooperation, an indisputable commitment to the areas of border security and the restriction of illegal immigration existed. Yet in these two documents, a much broader field of measures were explored. Measures included a commitment to establishing the Common European Asylum System and expanding the rights and privileges of third country nationals. The status, rights and privileges afforded to third country nationals had long been an issue within the European Union, brought to the fore once again by the developments in the field of European Citizenship. The Vienna and Tampere documents marked a commitment to clarifying and solving the issues encountered by legally resident third country nationals, thus marking an important step forward in eliminating discrimination in this field. Multiple measures aimed at enhancing the surveillance, cooperation and harmonisation at the external borders were nonetheless included but were balanced by measures affecting a variety of other areas within border, immigration and asylum policy.
49 The importance of a balanced and flexible approach is one of the fundamental features of these two documents, linking progress made in immigration and asylum to areas such as poverty prevention and alleviation, conflict prevention and democratic consolidation. This flexibility is asserted under the ‘comprehensive approach to migration’ in the Presidency Conclusions (European Council, 1999: 3).
Furthermore, the documents made continuous references to upholding the values and normative commitments of the European Union in regards to human rights and the Geneva Refugee Convention. Under the heading Immigration and Asylum Policies in the Vienna Action Plan, the document states that “when looking at the priorities ahead, different considerations must apply to immigration policy on one hand and asylum on the other” (CEC, 1991: 3). Throughout the establishment of European competency in these areas, the primacy of intergovernmental cooperation over any form of supranationalisation had often marginalised the European Parliament and the Court of Justice contributing to both a legal and democratic deficit. While these issues were not wholly remedied by the Vienna action plan and Tampere, progress was made towards incorporating these institutions into the structures which were becoming established in the area of Justice and Home Affairs, and particularly immigration and asylum.
The Role of 9/11 The attacks of September 2001 have been heavily included in the analysis of European immigration policy in the early 2000s, with many claiming that 9/11 further contributed to the securitisation of migration in Europe. In the article ‘Fortifying Fortress Europe: The effect of September 11 on EU Immigration Policy’, Adam Luedtke indicates how the pre 9/11 optimism in the aftermath of the Amsterdam Treaty and following the Tampere European Council was not sustained: “answering the call of the European Council (which represents national governments), the European Commission (the supranational executive body) began drafting an ambitious portfolio of laws and policies, including common EU rules for immigrants to bring in family members, rights and obligations for long-term residence, and even plans for an EU-wide ‘green card’ and system of labour immigration” (Luedtke, 2008). Furthermore, the author links the deteriorating will for greater integration and progress in EU immigration policy to the failure of the European Constitution following negative votes
50 in France and the Netherlands in 2005. Since the pillar structure of Maastricht, in which immigration and asylum were placed in the third pillar along with other matters of justice and home affairs, questions have been raised as to the long term effect of this placement. The linkage between immigration and asylum and the other areas of the JHA pillar have for a long time provided a link between immigration and the internal security of the European Union, and this trend was heightened further in the aftermath of the 9/11 attacks. “The Belgian Presidency’s efforts in the sphere of asylum and immigration policy were to some extent disrupted by the events of 11 September. It meant that, not only did the JHA Councils in November and December give very little time to asylum and immigration issues, but also that Member States became more reluctant to engage in further harmonisation at a time when several of them were in the process of toughening certain asylum and immigration rules as part of their national anti-terrorism packages” (Monar, 2002: 123-124). The sensitivity surrounding immigration and asylum policy meant that security concerns and national priorities often overshadowed harmonisation and integration on the political agenda. “The terrorist attacks in the United States on the 11 September not only highlighted the importance of effective EU measures on internal security, but also put enormous pressure on justice and home affairs’ cumbersome decision-making system to produce substantial legislative action in a very short time. While this test was passed quite successfully – especially in the area of judicial cooperation in criminal matters – other areas – asylum and immigration in particular – saw only slow and limited progress” (Monar, 2002: 121). The shifting of priorities away from the ambition showed in the Tampere programme towards internal security is important within any discussion of ‘fortress Europe’ as often throughout the development of EU immigration and asylum policy, security concerns have been the primary driver of restriction. However, in this case it is less fitting to say that 9/11 stimulated a more restrictive mind-set in the development of EU immigration policy, as to say that 9/11 stimulated increasingly security oriented national policy agenda diverting progress away from pure immigration and asylum policy altogether. The political will shown in the Amsterdam Treaty and Tampere had been dealt a blow, while security and judicial cooperation took a step forward. Yet there was a lack of evidence to show that migration policy became overly restrictive both in implementation and trajectory reflecting ‘fortress Europe’ in the wake of the attacks. Christina Boswell, in ‘Migration Control in Europe After 9/11: Explaining the Absence of Securitization’, forwards a number of points demonstrating
51 that 9/11 was not a key factor contributing to a securitisation of migration: “there is evidence that systems for monitoring and gathering data on migrants have been harnessed as part of the EU’s anti-terrorism strategy. Paradoxically, then, migration policy practices have been exploited for counter-terrorism purposes, rather than vice versa, as the critical security school would predict” (Boswell, 2007: 121). Many of the technological developments associated with immigration and the Schengen Agreement are employed by the European security apparatus but the overlapping utility is not demonstrative of securitisation. The securitisation literature plays a prominent role in the debate of ‘fortress Europe’ by drawing attention to potential links between immigration and security threats and thus many become more concerned by migrant entry. Linkages between security and immigration are often employed as evidence for the construction of a ‘fortress’ at the external borders and within the EU territories. The attacks of 9/11, Madrid and London certainly impacted on the pace of progress in immigration and asylum policy of the EU yet this was down to a refocusing of resources and a diminishing political will to continue in the ambitious vein seen in Amsterdam and Tampere rather than an increase in restriction. Nevertheless, progress was still made through additional programmes in The Hague and Stockholm, supplemented by developments within the Lisbon Treaty.
The Hague Programme The second of the multi-annual plans for the continuation of European policy in justice and home affairs came in the form of The Hague Programme. The Hague Programme continued in the vein of Tampere although with less ambition. The majority of measures in the field of immigration were based on the collection of data and further enhancement of cooperation. Such measures include: ‘annual reports on migration and asylum statistics’ and a proposal for a mutual information system on migration issues’ (CEC, 2005: 4). The Hague Programme was endorsed by the European Council for the period 2005-2009 and most importantly saw the implementation of the second phase of the Common European Asylum System. Furthermore, the period is also important for the initiation of co-decision on immigration and asylum policy finalised in the European Reform Treaty signed in Nice 2001 along with qualified majority voting procedures following approval from the European Parliament. The following key measures are outlined by Richard Plender (2008: 305).
52 A common European asylum system with a common procedure and a uniform status for those who are granted asylum or protection by 2009; Measures for foreigners to legally work in the EU in accordance with labour market requirements; A European framework to guarantee the successful integration of migrants into host societies; Partnerships with third countries to improve their asylum systems, better tackle illegal immigration and implement resettlement programs A policy to expel and return illegal immigrants to their countries of origin; A fund for the management of external borders; Schengen information system (SIS II) – a database of people who have been issued with arrest warrants and of stolen objects to be operational in 2007 Common visa rules (common application centres, introduction of biometrics in the visa information system).
The events of 9/11 and the Madrid bombings of 2004 reflect the primary concerns of Member states residing with security measures and thus immigration policy became an area of cautious progress. This is shown in the programme with passages aiming to strike a “’balance’ between freedom and security, calling for the need to strike the right balance between law enforcement purposes and safeguarding the fundamental rights of individuals” (Guild, Carerra & Eggenschwiler, 2010:4). The list above again details a number of policies which illustrate the broad array of areas which are now included under the auspices of ‘fortress Europe’, with each action plan indicating a more comprehensive list.
Throughout the mid 2000s, the ambition of the Tampere programme was waning under the concerns guiding The Hague programme’s orientation towards security, and the difficulties of a common immigration and asylum policy were beginning to resurface. In response to the 2008 European Pact on Immigration and Asylum, some went as far as to say that the drive towards a common policy had stalled.
53 “The Pact is intended to provide a roadmap for future European immigration policies and sets out five priorities for action: legal immigration and integration; control of illegal immigration; effective border controls; a European asylum system; and migration and development. None are new areas of EU action: both the Tampere and Hague Programmes were conceived and articulated with the aim of addressing all aspects of migration to Europe. The Pact’s preamble gives the impression that immigration policy-making at European level has stalled. But while ambitions to create a single EU immigration policy have been scaled down in recent years” (Collett, 2008: 1).
Despite the difficulties encountered in establishing a holistic common immigration policy covering all the areas associated with immigration, the strengthening of the external borders was an area that can be seen to appeal to all Member States concerned. “Immediate and visible events have tended to act as a catalyst for EU action, with terrorist attacks and renewed concerns about Europe’s ‘leaky’ Eastern and Southern borders transforming external border control policies from mere ‘compensatory measures’ into an independently-driven mission” (Collett, 2008:1).
Common European Asylum System As in other policy areas, the Amsterdam Treaty marked a significant step in the development of the Common European Asylum System. Prior to the sharp increase in the number of asylum seekers in the late 1980s and early 1990s, little effort had been made at the European level to work towards a cooperative and harmonised asylum system. While all Member states were signatories to the 1951 Refugee Convention, asylum policy remained solely under national jurisdiction. Throughout the 1980s and 1990s moves were made in the field of asylum as T.J. Hatton analyses in three dimensions. First, “the tightening of border controls through measures such as carrier sanctions, enhanced inspections and border patrols, and the introduction of special airport zones to quarantine potential asylum seekers”. The second dimension included “the procedures that were used to determine whether or not an applicant would gain refugee status. This included narrowing the definition of a refugee, introducing fast track procedures for ‘manifestly unfounded’ claims, narrowing the scope for appeals, and being less generous in awarding permission to stay on
54 humanitarian grounds”. And the final dimension was “a progressive toughening of the conditions asylum seekers faced during the processing of their applications. These included restricting access to employment, reducing welfare payments or substituting benefits in kind, and increasing use of detention” (Hatton, 2015: 611-612). The declaration of the Common European Asylum System was first made in the Tampere Agreement 1999, following the initial effort to prevent ‘asylum shopping’ through the Dublin Convention 1991. Tampere initiated the first phase of the CEAS, with the overall objective of establishing minimum standards within a five-year period. The second phase, through The Hague Programme and the Stockholm Programme sought to extend and deepen these areas to develop common standards. The objectives of the second phase are expressed in The Hague Programme: “the aims of the Common European Asylum System in its second phase will be the establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection. It will be based on the full and inclusive application of the Geneva Convention on Refugees and other relevant Treaties, and be built on a thorough and complete evaluation of the legal instruments that have been adopted in the first phase” (European Council, 2005: 3).
The central legislative developments in the CEAS are: the Dublin Regulation (replacing the Dublin Convention) aimed at determining the member state responsible for examining the asylum application, the Reception Directive aimed at establishing standards for reception conditions, the Procedures Directive detailing the procedure for the examination of the application and type of protection and rights and privileges granted to those eligible for protection in the Temporary Protection Directive and the Qualification Directive (Stoyanova, 2015: 4). Further cooperative measures have been put in place including the European Refugee Fund in order to support EU countries’ efforts in receiving asylum seekers and the creation of the European Asylum Support Office (EASO) to further enhance cooperation on matter of asylum policy and practical implementation.
Throughout the development of the CEAS, a number of critiques have surfaced claiming that the true purpose of the moves towards a common asylum system are not grounded in a desire to enhance the level of protection or increase the amount of people received. Rather, the CEAS is a product of member state political self-interest.
55 The influx of asylum applications and refugee numbers in the 1980s and 1990s, without the capacity and structures to adequately deal with such an influx caused a political backlash in many European countries: “in a number of countries it has spawned a political backlash that has led to ever tougher policies to restrict access to the border, to tighten up on the criteria for granting refugee status, and to circumscribe the terms and conditions under which asylum seekers subsist” (Hatton, 2015: 605). Arguments for the construction of ‘fortress Europe’ in relation to European asylum policies follow a similar pattern. While restriction has been part of the agenda in regards to ending the possibility of asylum shopping, the majority of measures are aimed at implementing a system which caters for the regional nature of the asylum problem, with further impetus for the implementation of such a system stemming from the freedom of movement within the EU. Restriction has played a part in the European policy development, yet such developments fall a long way short of enacting a literal ‘fortress’. However, the moves towards the CEAS have occurred in such a way which plants it firmly in the same area as the other measures to be included within a conceptual definition of ‘fortress Europe’. Thus while in some areas, protection is being extended, with better facilities and procedures it is now a constituent part of ‘fortress europe’ through the way it is firmly planted within the regime which is representative of ‘fortress Europe’.
The Stockholm Programme The Stockholm Programme once more indicated a continuation of the calls for a holistic approach to migration policy, yet the framing moved away from the ‘balance between freedom and security’ seen explicitly in The Hague Programme. “The Stockholm Programme is the EU’s response to open questions about the ways in which people’s rights are respected (and empowered) and their security protected. Indeed, the Stockholm Programme departs from its predecessor (The Hague Programme) by stating that the challenges will be to ensure respect for fundamental freedoms and integrity while guaranteeing security in Europe” (Guild, Carerra & Eggenschwiler, 2010: 5). Many of the items included in the programme built upon the proposals seen in both Tampere and The Hague programmes and also furthered the aims outlined in the Global Approach to Migration in 2005 yet framed the issues within a ‘Europe of rights’ (Guild, Carerra & Eggenschwiler, 2010: 5).
56 In addition to the global approach to migration, the recognition of the differentiation between member states’ legal systems in Article 67 (1) of the Treaty on the Functioning of the European Union provides a basis for the flexibility and need for a holistic approach stressed in the Stockholm Programme. The European Council thus emphasised the following:
“The development of a forward-looking and comprehensive Union migration policy, based on solidarity and responsibility, remains a key policy objective for the Union. Effective implementation of all relevant legal instruments needs to be undertaken and full use should be made of relevant Agencies and Offices operating in this field. Well-managed migration can be beneficial to all stakeholders. The European Pact on Immigration and Asylum provides a clear basis for further development in this field. Europe will need a flexible policy which is responsive to the priorities and needs of Member States and enables migrants to take full advantage of their potential.” (European Council, 2010: 5).
Measures included in the programme both develop the channels for legal migration whilst simultaneously strengthening measures to tackle illegal immigration are practical examples of this flexibility. “A balance between the three areas (promoting mobility and legal migration, optimising the link between migration and development, and preventing and combating illegal immigration) should be maintained” (European Council, 2010: 28). The calls for flexibility and balance are demonstrative of the difficulties still encountered in the advancement of a European approach to immigration. “Against this political background, ‘hard’ legal instruments such as regulations and directives only have limited use in putting migration policy into practice. Although Member States have committed themselves to furthering cooperation in the Treaty, concluding binding, legally-enforceable measures have proved to be a lengthy and contentious process and Member States are far from agreed as to what type of immigration model is best for the EU” (Cardwell, 2013: 55).
57 Fortress Europe The period from the late 1990s and through the 2000s consists of a number of crucial developments in the EU immigration and border regime. In comparison to the developments in previous years, the steps taken represent considerable progress. The principle reason enabling such progress to be made is that the debate over competency had been largely solved by the early 2000s. While there were still questions existing over the voting procedures within the Council and the true role of the Commission, the steps taken in Amsterdam and the years succeeding allowed substantial progress to be made in substantive areas of policy. ‘Fortress Europe’ continued to have a widespread usage across the 2000s in the same vein as the usage in the late 1990s across immigration, border and asylum policy. The progression made with the action plans for the 2000s mark the creation of a comprehensive border, immigration and asylum regime, possessing restriction at its core. Following this completion and the number of policy areas which had now been subsumed into the regime, ‘fortress Europe’ can be seen as a accurate and useful descriptor of this regime, going beyond the critiques and purely rhetorical uses seen in the past.
58 Conclusion
‘Fortress Europe’ has been used in relation to borders, immigration and asylum for over four decades, yet has suffered greatly from incoherence, and also from rhetorical potential. The rhetorical value of such a term has detracted from the analytical potential it possessed. As seen in the advocacy literature, the term is useful in a rhetorical manner for drawing attention to what many see as an overly restrictive immigration, border and asylum regime. However, as this thesis has shown, a number of policy streams dating back to the restrictive turn of the 1960s and 1970s can be followed through the developments of the 1980s and 1990s in the realm of competency, and finally the substantive programmes of the 21st Century have now come together with restriction as a core element. ‘Fortress Europe’ has often been used in relation to these measures individually and as a trajectory, but now that the streams have come together in such a way in the European border, immigration and asylum regime of today that ‘fortress Europe’ has become an accurate and useful descriptor that can be applied as a means of analysing the myriad of measures constituting this regime.
The regime of border, immigration and asylum policies we now see in Europe has come a long way since the first steps taken in the 1970s. By tracing the processes leading to the common policy held by the EU today, a number of key measures and policy processes have been shown to be crucial to any term attempting to define the European border, immigration and asylum regime. The regime includes a dizzying amount of legislative acts, proposals and platforms stretching across a number of policy areas. Thus, it is useful for analysis to possess a term such as ‘fortress Europe’. While not a literal descriptor of the physical borders, which must be explicitly stated in any definition, ‘fortress Europe’ when taken as a descriptor sufficiently represents a regime encompassing a broad range of policy areas each with restriction as a core aspect.
This study was conducted in order to give an overview of the key measures and processes occurring through the development of ‘fortress Europe’ as we see it today. This development goes far beyond the measures often associated with the European border regime in the recent action plans of The Hague and Stockholm programmes.
59 As this development stretches as far back as the 1970s and beyond to the period of post Second World War immigration, it was fitting to employ the process tracing method from this period. Through the analysis of official sources, the streams associated with ‘fortress Europe’ could be analysed and often followed in unexpected directions, throwing light on just how varied and inclusive immigration, border and asylum policy has become.
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