Europe 1993: The dilemma posed by asylum policy: Freedom of movement

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The author is Allen and Overy Professor of European Law, University of Durham.

AMIDST the celebration of the single market, one area remains as thorny as ever: the freedom of movement of people between EC states. It highlights the complexity of the Community's problems on immigration and asylum.

The free movement of persons was one of the fundamental freedoms in the original EC treaty, which conferred freedom of movement on workers, the self-employed or providers of services, who wished to move from one member state to another to carry out an economic activity. The right of free movement applied to these migrants only if they were nationals of one of the member states. They could, however, be accompanied by their family, irrespective of the nationality of the members of their family. The right was subject to exceptions on the ground that an individual constituted a threat to public policy, public security or public health. Case law and legislation have since extended the right to other Community nationals.

The right of free movement does not apply under EC law to nationals of third states who wish to immigrate to or who are already resident in the Community. Their legal position is covered by the law of each member state, subject to the rules to be introduced under the Maastricht treaty. Broadly speaking, since the 1970s, all Community members have introduced extremely restrictive immigration policies for non-Community nationals.

After 1 January 1993, individuals should have the right to move freely within the internal market. Border controls within the Community should be abolished, not eased. The EC Commission takes the view that this necessarily implies the complete abolition of controls on all individuals who cross internal frontiers, irrespective of their nationality, even though this implies that member states will no longer be able to check whether a person wishing to cross a border is a national of a member state and whether he or she constitutes a danger to public order, public security or public health. The Commission maintains that frontier controls on persons should disappear at internal Community borders whereas they should be maintained and strengthened at the Community's external borders.

The UK has fiercely contested this, and has insisted on the right to maintain some controls, at least so as to determine whether an entrant to the United Kingdom is or is not a Community national. Unless the Commission and the UK resolve their differences, a major legal clash appears inevitable.

The 12 Community states have prepared for the introduction of the Single Market by preparing conventions on asylum and the crossing of the external frontiers of the Community. However, the Dublin Asylum Convention merely determines the state responsible for examining applications for asylum lodged in one of the EC member states and does not attempt to harmonise the different national laws on asylum. A draft external Frontiers Convention is deadlocked in a dispute between the United Kingdom and Spain over the status of Gibraltar. This stalemate is serious: without it, the establishment of an internal market without frontiers will not be practicable.

The Asylum and external Frontiers Conventions are to be supplemented by secretly negotiated Parallel Conventions extending many of these rules to countries which are not members of the EC, with the intention of extending a cordon sanitaire around the Community. It may make it impossible for asylum-seekers or would-be migrants to arrive in an EC state to present a request for asylum or immigration, as once the new conventional framework comes into being, the external border controls will have been effectively extended beyond the Community.

In a development which could represent a de facto beginning of a two-speed Europe, eight EC countries anticipated the start of the Single Market by concluding the Schengen agreements. These provide for the abolition of border controls and free circulation of persons between the signatory countries. The agreements (which are not yet in force but could be from mid-1993) were negotiated in secret as inter-governmental agreements outside the framework of the European Community. The agreements have attracted fierce criticism for their provisions on asylum as well as the introduction of a massive Europe-wide computerised information system on persons.

The Maastricht treaty provisions on immigration and asylum were conceived in full awareness of the problems likely to arise as a result of the Single Market, and the need for common European policies. But they represent a failure to meet this challenge. It is clear that a frontier-free Europe will require ever-increasing co-operation between the member states in these fields. The logical solution would have been to have given the Community power to tackle these problems to arrive at a true European immigration policy. Instead, because these areas are so closely linked to national security and the exercise of sovereignty, and are politically sensitive, they were made the subject of inter-governmental (rather than Community) co-operation in the fields of justice and home affairs.

The Community is a pole of attraction for those in the former Eastern bloc, Turkey and North Africa and beyond. But as the internal market brings its economic rewards, Europe must learn to accept its concomitant responsibilities in a way which promotes and does not diminish civil liberties.