A new vision for EU Home and Justice Affairs ?
The moment has come for the EU to come up with forward-looking ideas impacting on areas such as migration, asylum and justice.
The Stockholm Programme, which set out Home and Justice Affairs policies for the years 2010 to 2014 is coming to an end. Before the adoption of Council conclusions on the future layout of policies in the area of Freedom, Security and Justice (expected on June 2014), the European Commission launched two public consultations on the Future of Home and Justice Affairs Policies, to which COMECE’s Secretariat contributed (Contribution on Home Affairs, Contribution on Justice Policies). The reflections which follow are based on the content of those contributions.
A fairer migration policy
A realistic approach to migration lies somewhere between the extremes of excess and deficiency: populism and utopianism. Future migration policies should be built on some key moral principles, most of them directly related to the protection of human dignity and fundamental rights. But at the same time, under those principles, prudence must assess and judge each single situation in a holistic perspective – social, economic and political - in order to find the fairest solution in particular cases.
That is, for example, the case for the right to family reunification. The EU Charter of Fundamental Rights enshrines in its Article 33.1 the obligation to protect the family viewed from legal, economic and social perspectives. This provision is also applied to migrants who are entitled to have their family reunified as soon as possible, with due protection for children who are not legally linked to the sponsor, and to the prevention of any kind of fraudulent marriages.
On the other hand, the unjust treatment of regular or irregular migrants undermining their fundamental rights and dignity (e.g. because of their race) is a matter of increasing concern that should be faced up to in migration policies. Measures to assist European societies to generally welcome migrants might help to change an environment of hostility, wherever it exists. Detention of irregular migrants (or asylum seekers) is not always an appropriate and proportionate measure, particularly in the case of families, and therefore less restrictive alternatives should be considered. Moreover, whenever societal resources are available, a fair access to basic services for the most vulnerable is highly desirable, particularly in the case of children, the elderly and pregnant women. First aid and urgent health services do not have to discriminate between regular or irregular migrants.
Labour migration partially offsets the current demographic deficit in EU societies. Attracting students, researchers and highly qualified talent is necessary and convenient for the EU – preventing potential brain-drain effects - but it should not mean that unqualified people remain completely out of the framework. Openness and generosity are also desirable in the pursuit of the societal common good. In those cases in which regular stay is not legally possible, assisted voluntary return has to be prioritised, ensuring also safeguards in cases of enforced return. Humanitarian assistance to migrants should be supported and not criminalised by public authorities: legislators must never discourage people from helping their neighbours in need or distress. Besides which, the prevention of loss of life at the EU’s borders is a moral obligation. Finally, full implementation of the EU Directive on trafficking in human beings should be a permanent concern of public authorities which must involve civil society and Churches in their work in this fight.
Asylum: implementation and burden-sharing as the keys
The legitimate margin of manoeuvre given to the Member States to transpose a Directive is sometimes misused with the intention of partially reshaping its content. That is why it is important to ensure full and appropriate implementation in this regard of the new Common European Asylum System, to avoid unjustified asymmetry amongst countries.
We are seeing dramatic changes in the European neighbourhood, particularly in the bloody war in Syria. Refugees are coming to our shores and lands fleeing from violence - but still the answer of EU Member States is insufficient. “Burden sharing” must not be an empty expression; and an increase in the number of resettled refugees is needed, offering speedy access to Europe with a better accommodation of the wishes of refugees concerning the country in which they wish to remain.
Civil law: a time for assessment
In the area of justice policies, starting with EU civil law, the consistent flow of EU legislation of the last few years should be followed by a thorough and extensive evaluation of its quality and impact.
The goal of building mutual trust between authorities and services of the Member States should be informed by respect for the specificities of the national legal orders and traditions. In this regard, family law is a particularly delicate sector. The suggested more frequent recourse to enhanced cooperation in this field has already been criticised and cautioned against in the interest of ensuring well-functioning legal frameworks. It would be opportune to first carefully assess, within the necessary time frame, the results achieved with Council Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. This in the context of a broader evaluation of the efficacy of existing EU family law (e.g. what about prevention of ‘law shopping’ or the erosion of the role of ‘public policy’?). Furthermore, initiatives in this field should be rigorously compliant with the referral to national legislation under Article 9 of the Charter of Fundamental Rights of the EU. One good example is the eventual proposal on mutual recognition of the effects of civil status records (where the COMECE Secretariat contributed to the relevant consultation).
The suggested idea of proposing a new EU text on minimum standards for the participation of children in court proceedings on parental responsibility deserves particular appreciation and merits being supported.
New opportunies in criminal law
In this area, focus might be placed on protection of children (including the online environment) and on prostitution. Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law has also proved to be a useful instrument and thought could be given to transferring its current scope and main elements into a proper Directive. Victims of crimes should also be kept to the forefront (e.g. so-called victim funds, as well as the monitoring of the successful implementation of Directive 2012/29/EU on minimum standards on the rights, support and protection of victims of crime as a starting point).
In the area of detention, the impulse given by the Green paper on the application of EU criminal justice legislation in the field of detention deserves to be carried over, with special emphasis on humane conditions of detention.
The impact of efficient administrations
EU initiatives will also concern the area of EU administrative law and national administrations. In this case, the links with less red tape, greater quality and simplification on one side and an administration able to foster economic competitiveness and growth should be enough of an incentive to avoid inaction. Compliance with the right to good administration enshrined in Article 41 of the EU Charter should be monitored in detail.
Rule of law and fundamental rights
Concerning the areas of rule of law and fundamental rights, many elements have already been highlighted in a previous Europeinfos article (December 2013). One could add that promotion of EU citizenship should remain centre stage, with particular regard to the correct implementation and interpretation of EU legislation concerning the ‘pillar’ on the right to free movement of citizens and their family members within the Union (in particular: Directive 2004/38/EC).
A springboard for decisive progress
As will be clear from the above – inevitably brief – remarks, the forthcoming post-Stockholm Programme has the potential to drive forward EU policies in key areas. Cooperation and constructiveness on the part of all the Member States and a balancing role by the European Commission will be essential. The COMECE Secretariat has been making its contributions since the earliest stage of the process and will continue to be actively promoting robust and effective policies in the area of justice and home affairs for the next five years.
José Luis Bazán & Alessandro Calcagno