A Fresh Start, or Old Wine in New Bottles? The European Commission’s Proposals for Legal Migration

Guest post by Thomas Spijkerboer, Professor of Migration Law at the Vrije Universiteit Amsterdam. Thomas is on Twitter @TSpijkerboer.  

Two days ago, the European Commission presented proposals for legal migration to the European Union. The Commission wants to resettle 50,000 refugees.

What are the plans?

The Commission's proposal has three interesting elements:

• In the next two years, EU countries will resettle at least 50,000 refugees from neighbouring countries, such as Turkey and Libya. These are people who have been recognized as refugees by the UNHCR, and are thus eligible for asylum. The European Commission does not want to force EU Member States to participate in this relocation, but aims to seduce them with, for example, financial support. The Commission reserves 500 million Euros to this end - that is €10.000 per refugee.
• The European Commission plans to finance pilot projects in 2018 on labour migration. Together with the business community, European labour shortages will be mapped. The employees that are needed will then be recruited in countries that cooperate in forced returns of undocumented migrants.
• The European Commission aims to adopt a more effective return policy. To this end it proposes that the European Border and Coast Guard (also known as Frontex) is given more powers, and will develop a ‘proactive approach’ with a new return department. Countries of origin should be motivated to cooperate by rewarding them with legal labour migration options; thus linking the second and the third element together.

Will the proposal be adopted?

The European Commission’s proposal has to be accepted by the Council of the European Union (i.e. the governments of the EU Member States) and the European Parliament (see Article 78 (2) of the  Treaty on the Functioning of the EU). The proposals are in line with what has previously been discussed in both institutions. Therefore, it is likely that the main points of the Commission’s proposals will be adopted. This does not necessarily mean that they will also be put in practice.

Non-binding resettlement

While refugee resettlement as a policy has existed for a long time, little use has been made of it. The Netherlands, for example, resettles 500 refugees from around the world annually. By contrast, Canada resettled 40,000 Syrian refugees, while the United States are drastically downsizing their resettlement program. A major problem is indeed the non-binding nature of this policy.

Nevertheless, the European Commission does not opt for a mandatory resettlement programme (as was the case with the relocation from Greece and Italy). Instead, the Commission wants to tempt member states with financial incentives. However, is this enough? Resettling refugees also costs money. So, it is unclear why Member States which do not resettle refugees at present (or do so only in small scale, like the Netherlands), would suddenly be convinced of its necessity now as part of a European plan.

The reason why European countries resettle so few refugees is not clear either. They may find it overwhelming to resettle at the same time as they deal with continuing arrivals of asylum seekers. Hungary and Slovakia, for example, recently requested the Court of Justice the annulment of the Council Decision obliging Member States to relocate asylum seekers from Greece and Italy (CoJEU, 6 September 2017, Slovak Republic and Hungary v Council of the European Union). An additional hurdle could be that some Member States are reluctant to resettle more refugees than others. A similar mechanism in the Temporary Protection Directive (i.e. voluntarily sharing the burden in case of a large inflow of refugees) was not used in 2015, although the directive was specifically written for such a situation.

Whether a European approach will drastically change the situation and encourage states’ fair sharing of responsibility, is to be doubted. Optimists will think that a coordinated European approach is precisely the little extra that European countries need in order to be more active on resettlement. On the other hand, pessimists will believe that this is old wine in new bottles.

Labour migration

The proposals do not make clear why the Commission believes that Member States will allow more labour migration because of the proposed pilot scheme. Academics like Hein de Haas and Douglas Massey argue that the current attempts to restrain low-paid labour migration are counterproductive. They show that under a strict migration policy, people are as likely to migrate, but are less likely to return when they get older, or when the economy goes down. Quite paradoxically, a ‘breathing’, liberal and less restrictive labour migration policy leads to less settled migrants. The Commission's proposals could be a step in this direction.

Still, there are other problems. The proposals suggest that they will address the demand for low-skilled labour through legal migration. But this is problematic in two ways: (1) legal labour costs more than employers want to pay; actually, there is demand for low-paid labour by undocumented workers because illegality decreases labour costs; (2) formally, the demand for low-paid employment can be met by labour supply which already is available on the European labour market. There are unemployed people who theoretically could do these jobs, but they have better alternatives (such as waiting for a more rewarding and better paid job). Therefore, migration policies regarding labour do not allow for legal migration because theoretically the demand for labour can be met on the domestic labour market.

To sum up, a pilot scheme won’t harm, and might even lead to something interesting if the proposal is a step towards a less restrictive labour migration policy. But the problems that cause undocumented labour migration in the first place are not even mentioned in the proposals, let alone addressed.

Return policy

With regard to the third element, the Commission proposes to beef up Frontex. Would expanding Frontex's powers contribute to a more successful return policy? Do return policies fail because the number of European officials working on expulsions is too small? What would be achieved if Frontex could initiate cooperation with Member States (‘proactively’!), instead of having to wait for an invitation? It is simply unclear which problems the Commission wants to solve by expanding Frontex’s mandate.

The idea of requiring third countries to cooperate on return policies in exchange of increasing the routes for legal labour migration is interesting, because it could be part of a more liberal labour migration policy. However, as mentioned above it is unclear how realistic the Commission’s plans on that front are. And if the labour migration pilot scheme does not work, Europe will not the leverage to incite third countries to cooperate.

Tackling boat migration?

One of the aims of the proposals is to tackle boat migration in the Mediterranean. Even if all plans were put into practice, would they achieve that aim? Drawing on the discussion above, the Commission's new plans raise more questions than answers. How would the proposals convince states to resettle refugees they now refuse to? Why would beefing up Frontex contribute to more returns? And is it not the case that allowing for legal labour migration in return for co-operation on forced returns would lead to more forced returns? After all, the migrants who would then be returned against their will might just try their luck on yet another boat.

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How to cite this blog post (Harvard style)

Spijkerboer, T. (2017) A Fresh Start, or Old Wine in New Bottles? The European Commission’s Proposals for Legal Migration. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/09/fresh-start-or (Accessed [date]).