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Enlarging ‘Fortress Europe’: Eu Accession, Asylum, and Immigration in Candidate Countries1

  • Catherine Phuong (a1)
Extract

The European Union is soon to be composed of twenty-seven Member States. The first wave of enlargement is to take place in 2004 and may see the accession of Cyprus, the Czech Republic, Hungary, Malta, Poland, Slovakia, Slovenia, and the three Baltic states. A few years later, Bulgaria and Romania are also expected to join the EU. Although previous enlargements have taken place,2 the imminent accession of ten countries, mainly from Central and Eastern Europe, is unprecedented not only in terms of scale, but also for its political symbolism: for these states, EU membership confirms the success of their democratic and economic transition efforts and represents their (re-)integration to the European family after decades of isolation under the Soviet domination.

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2 Denmark, Ireland, and the UK first joined in 1973, Greece in 1981, Spain and Portugal in 1986, and Austria, Finland, and Sweden in 1995.

3 On issues of institutional reform in anticipation of enlargement, see for instance Shaw, J, ‘The Treaty of Nice: legal and constitutional implications’ (2001) 7 European Public Law 195.

4 See, for instance, see Guild, E and Harlow, C (eds), Implementing Amsterdam: Immigration and Asylum Rights in EC Law (Oxford: Hart Publishing, 2001), Hailbronner, K, ‘European immigration and asylum law under the Amsterdam treaty’ (1998) 35 Common Market Law Review 1047, O'Keefe, D, ‘Can the leopard change its spots? Visas, immigration and asylum—following Amsterdam’, in D, O'Keefe and Twomey, P (eds), Legal Issues of the Treaty of Amsterdam (Oxford: Hart Publishing, 1999), 271–88, and Simpson, G, ‘Asylum and immigration in the European Union after the treaty of Amsterdam’ (1999) 5 European Public Law 91.

5 See, however, Byrne, R, Noll, G, and J, Vested-Hansen (eds), New Asylum Countries? Migration Control and Refugee Protection in an Enlarged European Union (The Hague: Kluwer Law International, 2002).

6 Seiffarth, O, ‘The enlargement process and JHA co-operation’, in PJ van, Krieken (ed), The Asylum Acquis Handbook (The Hague: TMC Asser Press, 2000), 6172, at 62.

7 Agenda 2000: For a Stronger and Wider Union, COM(97) 2000, 16 July 1997.

8 The Phare programme was initially set up in 1989 to support the transition to a market-orientated economy in Poland and Hungary and was subsequently extended to other countries. It is now complemented by two other funds created in 2000, SAPARD (Special Accession Programme for Agriculture and Rural Development) and ISPA (Pre-accession Instrument for Structural Policies).

9 For the latest Progress Reports, see <http://europa.eu.int/comm/enlargement/report2002/>.

10 Lavenex, S, ‘Asylum, immigration, and Central-Eastern Europe: challenges to EU enlargement’ (1998) 3 European Foreign Affairs Review 275, at 284.

11 Grabbe, H, ‘The sharp edges of Europe: extending Schengen eastwards’ (2000) 76 International Affairs 519, at 528.

12 See Lavenex, above n 10, at 288.

13 The 1990 Dublin Convention on the allocation of responsibility for examining an asylum application does not guarantee that an application will be examined by an EU Member State and allows transfers of asylum-seekers to safe third countries which are not parties to the Convention, see Art 3(5).

14 See Bouteillet-Paquet, D, L'Europe et le droit d'asile (Paris: L'Harmattan, 2001), 279–80. One must note that some EU Member States do not always agree upon which Central European countries should be considered to be safe.

15 This list has been reproduced in van Krieken, above n 6, at 104–14.

16 EU initial position for the opening of negotiations with the first six countries, Document 6473/3/98 REV 3 JAI7 ELARG 51, 25 May 1998, reproduced in Seiffarth, above n 6, at 67–8.

17 Making a success of enlargement, strategy paper and report of the European Commission on the progress towards accession by each of the candidate countries, 13 Nov 2001, 18.

18 See House of Lords' Select Committee on European Union, Enlargement and EU External Frontier controls, 24 Oct 2000, para 14.

19 Grabbe, see above n 11, at 529.

20 See Art 8 of Schengen Protocol.

21 See House of Lords' Select Committee on European Union, above n 18, para 25.

22 Ibid, para 52.

23 Ibid, para 54.

24 See Regulation No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from this requirement, amended by Regulation No. 2414/2001 of 7 December 2001 (deleting Romania from the visa list).

25 See, for instance, below III.C.

26 See Zielonka, J, ‘How new enlarged borders will reshape the European Union’ (2001) 39 Journal of Common Market Studies 507, at 514, and Grabbe, above n 11, at 531. See also the case of Romanian minorities in Moldova, see Le Monde, ‘A la frontiere roumano-moldave’, 9 June 2002.

27 See House of Lords' Select Committee on European Union, above n 18, para 76.

28 See Grabbe, above n 11, at 531.

29 For the first 2 years, EU Member States will apply national measures to regulate the employment rights of nationals from the new Member States. For the next three years, they will be free to apply the Schengen acquis and remove obstacles to free movement. This transitional period can be extended for a further 2 years. In total, free movement of persons can thus be delayed by a maximum of 7 years. Nevertheless, access to current Member States' labour markets cannot be restricted from the time of accession and during the whole transitional period. In addition, preference will be given to nationals of the new Member States over third-country nationals.

30 See Zielonka, above n 26, at 20.

31 See Commission, above n 17, at 5.

32 See Grabbe, above n 11, at 527.

33 See Lavenex, above n 10, at 293.

34 See Bouteillet-Paquet, above n 14, at 263.

35 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 1950 and Protocol Relating to the Status of Refugees, 31 Jan 1967, 606 UNTS 267. See UNHCR, State Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol as of 15 April 2002, at <http://www.unhcr.ch>.

36 See Bouteillet-Paquet, above n 14, at 333.

37 Lavenex, above n 10, at 277.

38 See Bouteillet-Paquet, above n 14, at 334.

39 See for instance Czech Republic: Act No 325 of 11 Nov 1999 on Asylum, Estonia: Law on Refugees of 18 Feb 1997, Hungary: Act CXXXIX of 9 Dec 1997 on Asylum, Poland: Aliens Law of 25 June 1997 (amended by the Act of 11 Apr 2001), Slovenia: Law on Asylum of 30 July 1999.

40 This Joint Support Program on the Application of the EU Acquis on Asylum and Related Standards and Practices in the Associated Countries of Central and Eastern Europe resulted from cooperation between the Commission, UNHCR and the German Federal Office for the Recognition of Refugees, with the assistance of six other Member States (Austria, Denmark, France, the Netherlands, Spain, and Sweden). For more detail, see Anagnost, S, ‘Challenges facing asylum systems and asylum policy development in Europe: preliminary lessons learned from the Central European and Baltic states (CEBS)’ (2000) 12 International Journal of Refugee Law 380.

41 See Byrne et al, above n 5, at 17.

42 M Petersen, ‘Recent developments in Central Europe and the Baltic states in the asylum field: a view from UNHCR and the strategies of the High Commission for enhancing the asylum systems of the region’, in Byrne et al, above n 5, 351–72, at 367.

43 On accelerated procedures, see J van der Klaauw, ‘Towards a common asylum procedure’, in Guild and Harlow (eds), above n 4, 165–93, at 180–3.

44 UNHCR, Asylum Applications in Industrialised Countries: 1980–1999, Geneva, Nov 2001, table IV.3, at 91. On accelerated procedures, see for instance Art 9 of the Estonian Law on Refugees of 18 Feb 1997; Arts 43–7 of the Hungarian Act CXXXIX of 9 Dec 1997 on Asylum; and Art 14(2) of the Lithuanian Refugee Law of 29 June 2000, No.VII-1784, No 56–1651.

45 On the adoption of the safe third country concept by candidate countries, see Lavenex, S, ‘“Passing the buck”: European Union refugee policies towards Central and Eastern Europe’ (1998) 11 Journal of Refugee Studies 126, at 138.

46 See ECRE, Position on the Enlargement of the European Union in Relation to Asylum, Sept 1998, <http://www.ecre.org/positions/eu.pdf>.

47 See, for instance, Resolution on Manifestly Unfounded Applications for Asylum, Resolution on a harmonised approach to questions concerning host third countries, Conclusions on countries in which there is generally no serious risk of persecution (London, 30 Nov and 1 Dec 1992), and Council Resolution of 20 June 1995 on minimum guarantees for asylum procedures, OJ 1996 C 274/13.

48 See, for instance, Anagnost, above n 40, at 386.

49 Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, 15 June 1990 (hereinafter the Dublin Convention) OJ 1997 C 254/1, and Agreement on the Implementation of the Schengen Agreement of 14 June 1985 concerning the Gradual Abolition of Checks at their Common Borders, 19 June 1990 (1991) 30 ILM 84. For more detail, see K Hailbronner and Thiery, C, ‘Schengen II and Dublin: responsibility for asylum applications in Europe’ (1997) 34 CMLR 957.

50 Council directive No 2001/55 of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ 2001 L 212/12.

51 Proposal for a Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, 26 July 2001, COM (2001) 447 final (Dublin II); Proposal for a Council directive laying down minimum standards on the reception of applicants for asylum in Member States, 3 Apr 2001, COM (2001) 181 final; Proposal for a Council directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, in accordance with the 1951 Convention relating to the status of refugees and the 1967 Protocol, or as persons who otherwise need international protection, 12 Sept 2001, COM (2001) 510 final; Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, 20 Sept 2000, COM (2000) 578 final.

52 After signing a Europe Agreement in Dec 1991, Poland applied for EU membership in 1994.

53 Jerczinski, M, ‘Patterns of spatial mobility of citizens of the Former Soviet Union’, in Iglicka, K and Sword, K (eds), The Challenge of East-West Migration for Poland (London: MacMillan, 1999), 105–19, at 105.

54 Some amendments were made to the 1963 Aliens Act in 1991, but proved completely insufficient to deal with the situation, see Czaplinski, W, ‘Aliens and refugee law in Poland—recent developments’ (1994) 6 International Journal of Refugee Law 636, at 637.

55 See Stainsby, RA, ‘Asylum-seekers in Poland: catalyst for a new refugee and asylum policy in Europe’ (1990) 2 International Journal of Refugee Law 636, at 637.

56 See figures in B Mikolajczyk, ‘Poland’ in Byrne et al, above n 5, 48–77, at 50. A very high proportion of these applications (55 per cent in 1998) are discontinued as a result of the applicants disappearing, probably trying to enter the EU.

57 See UNHCR, 2000 Global refugee trends, Geneva, May 2001, 19, <http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=STATISTICS&id=3b9378e32&page=statistics>.

58 See Mikolajczyk, above n 56, at 52.

59 In 1998, there were 698 asylum applications lodged at the German-Polish border, see Mikolajczyk, above n 56, at 53. To this figure, one must add the number of applications lodged by asylum seekers re-admitted from Germany within the country.

60 See Grabbe, above n 11, at 529.

61 See Lavenex, above n 45, at 140.

62 Ibid, 132–3.

63 See Bouteillet-Paquet, above n 14, at 292.

64 Aliens Act no 114, 25 June 1997, OGRP, no 739/1997. For more detail, see Chlebny, J and Trojan, W, ‘The refugee status determination procedure in Poland’ (2000) 12 International Journal of Refugee Law 212.

65 See Mikolajczyk, above n 56, at 55.

66 See interview with Christian Mahr, London, 29 Sept 2001.

67 See Chlebny and Trojan, above n 64, 220–1. These time limits were removed in 2001.

68 See Monar, J, ‘Justice and home affairs’, in H Wallace and A Mayhew (eds), Poland: A Partnership Profile, OEOS Policy Paper, Apr 2001.

69 See G Noll, ‘Protection in a spirit of solidarity?’, in Byrne et al, above n 5, 305–24, at 322. Other candidate countries such as Hungary and the Czech Republic also have very low recognition rates, which place them amongst the most restrictive countries in Europe.

70 See 2001 Regular Report on Poland's Progress Towards Accession, SEC (2001) 1752, 13 Nov 2001, 87. I would like to thank Katarzyna Cuadrat-Grzybowska for providing me with an English translation of the amended 1997 Aliens Act.

71 See Mikolajczyk, above n 56, at 73–4.

72 See interview with Irena Rzeplinska, Warsaw, 11 June 2002.

73 See above n 47.

74 See Mikolajczyk, above n 56, at 70.

75 See Lavenex, above n 45.

76 See telephone interview with Marek Szonert, Warsaw, 26 June 2002. In 2000, 308 persons (members of the Roma community) from Bulgaria and 864 from Romania sought asylum in Poland, see Mikolajczyk, above n 56, at 52.

77 Protocol on Asylum for Nationals of Member States of the European Union, annexed to the EC Treaty (1998).

78 See Mikolajczyk, above n 56, at 70.

79 E-mail exchange with Michal Kowalski, 15 July 2002.

80 See Stola, D, ‘Poland’, in Wallace, C and Stola, D (eds), Patterns of Migration in Central Europe (London: Longman, 2001), 175202, at 176.

81 See Monar, above n 68, at 43.

82 Ibid, 44.

83 For more detail, see P Latawski, ‘Straz Graniczna: the mission, structure and operations of Poland's border guard’, in Iglicka and Sword, above n 53, 90–103.

84 See House of Lords' Select Committee on European Union, above n 18, para 63.

85 Ibid, para 61.

86 Ibid, para 60.

87 See 2001 Regular Report, above n 70, at 85.

88 M Anderson, ‘Border regimes and security in an enlarged European Community: implication of the entry into force of the Amsterdam Treaty’, RSC paper 2000/8, 21.

89 See Iglicka, K, ‘Migration movements from and into Poland in the light of East-West European migration’ (2001) 39 International Migration 3, at 8.

90 See IOM/ICPMD, Migration in Central and Eastern Europe—1999 review (Geneva: IOM, 1999), 112.

91 See Stola, above n 80, at 197.

92 See Grabbe, above n 11, at 530.

93 See Mikolajczyk, above n 56, at 60.

94 Interview with Isabelle Rivière, Warsaw, 12 June 2002.

95 See Iglicka, above n 89, at 13.

96 Interview with Isabelle Rivière, Warsaw, 12 June 2002.

97 See IOM/ICPMD, above n 90, at 115.

98 See Communication from the Commission to the Council, The EU and Kaliningrad, COM (2001) 26 final, 17 Jan 2001, 5.

99 Mikolajczyk, above n 56, at 58.

100 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec 1984, 23 ILM 1027 and 24 ILM 535.

101 See Lambert, H, ‘Protection against refoulement from Europe: human rights law comes to the rescue’ (1999) 48 ICLQ 515.

102 See Lavenex, above n 45, at 133.

103 Poland has signed readmission agreements with Bulgaria (1993), the Czech Republic (1993), Estonia (1993), Hungary (1994), Latvia (1993), Lithuania (1998), Romania (1993), Slovakia (1993), and Slovenia (1996). It has also signed agreements with other countries such as Moldova (1994) and Ukraine (1993).

104 See M Klaczynski, ‘Readmission agreements concluded by Poland’ (1997), <http://www.ujhrc.org/en/articles/klaczynski.htm>. The overwhelming majority of asylum seekers from these two countries do not obtain refugee status in Poland.

105 See the readmission agreements concluded between Poland and the Czech Republic, Slovakia, or Ukraine, see Bouteillet-Paquet, above n 14, at 362.

106 In the case of the readmission agreement signed with the Czech Republic, it was signed just the day before the Czech Republic also signed the 1951 Convention (10 and 11 May 1993 respectively).

107 See list of the main countries of origin for 1999–2000 in Mikolajczyk, above n 56, at 52.

108 See the number of asylum applications lodged in Lithuania upon readmission from Poland, in Sesickas et al, ‘Lithuania’, in Byrne et al, above n 5, 226–66, at 238.

109 Background Information on the Situation in Poland in the Context of the Return of Asylum Seekers, UNHCR Geneva, Nov 1998, quoted in Mikolajczyk, above n 56, at 62.

110 See Byrne et al, ‘Western European asylum policies for export: the transfer of protection and deflection formulas to Central Europe and the Baltics’, in Byrne et al, above n 5, 5–28, at 25.

111 See for instance the list of readmission agreements concluded by Hungary in B Nagy, ‘Hungary’, in Byrne et al, above n 5, 138–99, at 168.

112 See list of agreements in Lavenex, above n 45, at 133.

113 Interview with Christian Mahr, London, 29 Sept 2001.

114 See ECRE, above n 46, para 5.

115 Lavenex, above n 10, at 290.

116 Commission Strategy Paper, above n 17, at 7.

117 Zielonka, above n 26, at 524.

1 Research for this article was partly based on a study trip that was conducted in Poland in June 2002 and funded by a grant from the Socio-Legal Studies Association (SLSA). I would like to thank Marek Szonert and Monika Prus (Office of Repatriation and Aliens), Irena Rzeplinska (Helsinki Foundation of Human Rights), Isabelle Rivière (Delegation of the European Commission in Poland), Katarzyna Cuadrat-Grzybowska (Office of the Committee for European Integration), Wladyslaw Czaplinski (University of Warsaw), Michal Kowalski (University of Krakow) and Christian Mahr (UNHCR London). I would also like to thank Alistair Speirs for his comments on earlier drafts. The author alone is responsible for the opinions expressed in this article.

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