Opinion of the Economic and Social Committee on the "Communication from the Commission to the Council and the European Parliament on a common policy on illegal immigration" (COM(2001) 672 final)
Date: 2002-04-24
Institutions: European Economic and Social Committee
Subjects: approximation of laws, company constituted under civil law, fight against crime, illegal migration, migration control, police cooperation

21.6.2002

EN

Official Journal of the European Communities

C 149/79

Opinion of the Economic and Social Committee on the ‘Communication from the Commission
to the Council and the European Parliament on a common policy on illegal immigration’

(COM(2001) 672 final)

(2002/C 149/17)

On 21 January 2002 the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 10 April 2002. The rapporteur was Mr Pariza
Castan˜ os.

At its 390th plenary session (meeting of 25 April 2002), the Economic and Social Committee adopted
the following opinion by 97 votes to one with two abstentions.

1. Summary of the communication

campaigns, etc. Steps to promote peace, political stability,
human rights and sustainable economic development should
be taken in connection with the countries of origin.

The communication addresses various aspects of pre-
1.1.
immigration, and proposes
venting and combating illegal
action in areas such as visa policy, information exchange,
border management, criminal law and return policy.

1.2.
There is a section on guidelines, targets and require-
ments, in which key markers for future policy in this field are
laid down, and another on an action plan specifying what
action should be taken.

The section on guidelines, targets and requirements
1.3.
opens by pointing out that illegal immigration is multifaceted
and complex, and requires a thorough knowledge of its causes,
forms, patterns and channels if future measures are to fit the
facts.

The communication states that illegal immigration
1.3.1.
should be tackled without jeopardising the ability of people
who require international protection to gain access to the
Member States. In order to maintain this balance, the Member
States should explore the possibility of offering rapid access to
protection, so that refugees do not need to resort to illegal
immigration. Greater use should be made, for example, of the
possibility of processing requests for protection in the place of
origin, or facilitating the arrival of refugees in the Member
States through resettlement schemes.

Preventive measures necessary to combating illegal
1.3.2.
immigration include research into its causes, support for
new partnerships with the countries of origin, information

1.3.3.
The criminal activities associated with irregular
migration flows, involving both smuggling and trafficking in
human beings, must be countered and punished appropriately,
which means that Member State criminal law needs to be
harmonised. Progress must be made on common standards
for dealing with illegal employment, the liability of carriers,
and regulations on illegal entry and residence.

1.4.
The section on an action plan puts forward measures
on visas, information exchange and analysis, frontier measures,
operational and police coordination, criminal law and return
policy.

1.4.1.
The significance of visa policy to illegal immigration
lies in the fact that some illegal immigration occurs when
people pass through the proper border posts but do not have
the right documentation, or offer false documentation. The
current Schengen visa is a high-quality document which is
effective in countering forgery, but further steps need to be
taken to improve ways of identifying the visa-bearer. Thought
should be given to the idea of setting up joint visa posts, which
would provide better technical services and equipment, at
lower cost. A European electronic visa information system is
also necessary: in addition to identification by the document
itself, a further check could be made through the relevant
database.

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1.4.2.
Information exchange and analysis is of great import-
ance in understanding illegal immigration and dealing with it
appropriately. There needs to be more work on analysing
causes, methods of entry and so on. Information exchange
systems must therefore be modernised and the proposal to set
up a European Migration Observatory put into practice. The
establishment of an Early Warning System, or a permanent
communication network, has also been proposed. This would
allow each Member State to report any information on illegal
migratory movements instantly.

Possible steps to be taken in migrants’ countries of
1.4.3.
origin and transit
include the creation of a network of
immigration and airline liaison officers to coordinate action in
the countries of origin themselves. A broad package of
measures is also needed, including financial assistance for third
countries in such areas as support for asylum infrastructure,
awareness-raising campaigns, training for their public officials,
improved border control equipment etc.
expert meetings,
Awareness-raising campaigns would focus on the risks
involved in illegal immigration as well as other aspects.

1.4.4.
Improving the EU’s external border controls requires
measures such as creating a European border guard, developing
a training curriculum for border officials, or establishing joint
border teams. The creation of a European border guard school
is proposed as a future development.

1.4.5.
These proposals could be combined in order to
create a single technical support agency. This would include
the European Migration Observatory,
the Early Warning
the European Border Guard School and systems
System,
management
(SIS, Eurodac, European Visa Identification
System).

1.4.6.
Europol should expand its role in detecting and
dismantling criminal networks, and should be granted further
operative powers, especially with regard to trafficking or
smuggling of human beings.

All the Member States must make any necessary
1.4.7.
changes to their aliens law and criminal
law in order to
increase their effectiveness in tackling people traffickers and
smugglers. Smuggling is defined as action connected with an
illegal border crossing, while trafficking means exploitation of
persons. Anti-smuggling measures have been set out in a recent
directive, and there is a framework decision on combating
trafficking in human beings. Fresh legislative proposals are,
however, required to deal with the situation of the victims of
trafficking. The Commission is to present a proposal on
residence permits for victims of trafficking who cooperate in
investigations and criminal proceedings against exploiters.

1.4.8.
Illegal employment of irregular migrants stimulates
unlawful migratory flows and must be tackled with appropriate
sanctions: these should include charging the costs of return
and other expenses to their employers. The Member State
should ensure that this business does not pay.

1.4.9.
Carriers also bear specific responsibilities. They are
obliged to take all necessary measures to ensure that aliens are
in possession of valid travel documents. The Council has
already adopted a directive on this aspect, but further regu-
lations and greater harmonisation are necessary.

1.4.10.
Return policy supplements the above-mentioned
measures. Priority should be given to voluntary return. Broader
cooperation and joint action by the Member States is needed
regarding transit and readmission aspects: the human rights
situation in the country of origin must always be taken into
account
in reaching re-admission agreements. The Com-
mission is currently preparing a green paper on a Community
return policy.

2. General comments

2.1.
The Committee would firstly comment on the termin-
ology used. The term ‘illegal’ should be used in particular to
refer to smuggling, trafficking or exploitative activities, so that
those engaging in and profiting from such activities are
considered ‘illegal’. In contrast, some clarification is needed
when the term ‘illegal immigration’ is used to refer to individual
migrants. Although it is not lawful to enter a country without
the required documents and authorisation, those who do so
are not criminals. Lumping together irregular immigration and
crime, as the media frequently do, distorts the facts and breeds
fear-driven and racist attitudes among the general public .
Irregular immigrants are not criminals, even though their
situation is not legal.

2.2.
The Committee’s initial general comment on the
communication would be to express its full support for
immigration, particularly those aspects
combating illegal
involving smuggling and trafficking of human beings. These
criminal activities have resulted in a new form of slavery and
an illegal trade on a large scale, which feeds on the suffering of
millions of people. It is one of the greatest scourges of our
times, against which the rule of law should deploy every means
at its disposal.

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2.3.
The Committee welcomes the communication’s affir-
mation of the need to recognise the right to international
protection for those who require it and, consequently, to
combat illegal immigration without jeopardising the right of
asylum. The Committee is however convinced that this right
is not sufficiently safeguarded by the terms in which the
communication is couched, particularly with regard to carrier
liability. This aspect will be discussed under the specific
comments below.

The Committee supports the Commission’s proposal
2.4.
to create new legal instruments allowing sanctions for smug-
glers and traffickers in human beings to be increased, and
agrees with harmonisation of criminal and aliens legislation,
so that all the Member States can act with the same vigour in
this area.

As argued in the Committee’s Opinion on a new
2.5.
Community immigration policy (1),
the Community insti-
tutions and the Member States need to promote new legislative
instruments and enhance their political and administrative
work to prevent the illegal employment of irregular immi-
grants. This same need is reflected in the communication’s
comments on the ‘pull factor’ represented by illegal employ-
ment.

2.6.
The communication takes scarce account of the Com-
mission’s own analysis of the causes of irregular immigration
in its November 2000 Communication on a Community
immigration policy (2). At the time, it was pointed out that one
of the reasons for the increase in irregular immigration is the
lack of legal channels for labour migrants: demand for labour
exists in certain sectors of the European economy, but at the
same time current immigration policies make legal entry very
difficult. This is one of the causes of migration through
irregular channels: consequently, measures should be taken to
settle the status of those who find themselves in this situation.

2.7.
Since restrictive immigration policies, as currently
pursued, are largely responsible for many people ‘not having
the right papers’, the Commission and the Member States
should consider regularising their situation so that they can
legally obtain employment contracts.

The Committee believes that a common policy on
2.8.
illegal
immigration is needed as a necessary adjunct to a
common immigration policy. The Council should step up its
work on adopting the directives on family reunification, status
of long-term residents, and entry and residence conditions for
new immigrants. This would significantly reduce the problem
of irregular immigration.

(1) OJ C 260, 17.9.2001 (rapporteur: Mr Pariza Castan˜ os).
(2) Communication from the Commission COM(2000) 757 final.

3. Specific comments

In analysing the causes and defining the objectives of a
3.1.
common policy on illegal immigration, equal emphasis should
be placed on two major aspects:

— combating smuggling, trafficking and illegal employment

of human beings;

— opening up legal channels for migratory flows.

These two aspects must always be considered in tandem,
although the second is not covered in the communication
since it
is currently under discussion in other European
Commission proposals. The issue of illegal immigration is not
a matter for the police and courts alone.

3.2.

Illegal employment

3.2.1.
Steps to combat illegal employment must be given
greater importance. When illegal employment of irregular
immigrants infringes existing labour conditions established by
law, it should be defined as exploitation. The term ‘exploitation’
is used in the communication only when discussing trafficking:
in the Committee’s view, it should also be used with reference
to illegal employment under certain circumstances.

3.2.2.
Since proper channels for legal immigration do not
yet exist, in the course of their business some employers offer
work to irregular migrants, because they are unable to find
legal migrants.

A minority of employers take advantage of their
3.2.3.
irregular situation to exploit them, imposing labour and pay
conditions which violate all labour standards and/or collective
agreements. A few employers also act as accomplices to the
networks illegally smuggling human beings.

3.2.4.
Exploitation of workers should therefore not be
subject to economic sanctions alone: the criminal law of the
Member States should be brought to bear.

3.2.5.
The proposal to confiscate all financial gains from
criminal activities relating to irregular immigration meets with
the Committee’s approval.

irregular

immigrants

The social partners must be involved in combating
3.2.6.
the exploitation of
through illegal
employment. Trade unions and employers’ associations should
cooperate with the public authorities to stamp out exploitation
of immigrants. The Committee agrees with the Commission’s
proposal to eliminate any competitive advantages gained by
employers through irregular work. The possible future direc-
tive mentioned by the Commission could help eliminate this
problem.

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3.3. Rewarding victims who cooperate with the judicial authorities

3.3.1.
Victims of illegal work exploitation should be con-
sidered sympathetically. When immigrant workers caught up
in illegal employment are subjected to extreme conditions,
they must be seen as victims of exploitation. It should therefore
be stated that if victims cooperate with judicial enquiries into
illegal and exploitative working, they will be granted legal
residence, as is the case for the victims of trafficking in human
beings (point 4.7.2 of the communication).

3.3.2.
The Committee welcomes the Commission’s swift
preparation of a legislative proposal on residence permits for
victims who are prepared to cooperate in investigations and
criminal proceedings against their exploiters.

3.4.

Penalising carriers

The Committee would repeat in the present opinion
3.4.1.
that it opposes penalising passenger carriers. It has already
argued, in a previous opinion (1), that transport companies and
their employees should not be responsible for checking
passengers’ travel documents, as this may prevent the right of
asylum, protected by international conventions, from being
exercised by asylum seekers trying to reach the territory of an
EU Member State. The responsibility for checking travel
documents should lie with qualified officials, and could
be exercised by the network of liaison officials which the
Commission proposes be set up in the countries of origin,
rather than by travel operator staff.

Further to the above point, the Committee under-
3.4.2.
stands the term ‘carrier’
to mean a passenger transport
company which operates in full compliance with the law by
carrying persons who have paid the appropriate fare. It does
not therefore apply to goods carriers who knowingly transport
people unlawfully, a circumstance which should be covered in
any consideration of illegal smuggling.

3.5. Regularising persons with irregular status

3.5.1.
The Committee’s other main objection to the content
of the communication concerns the way irregular immigrants
in the EU should be treated. The communication speaks only
of return policy:
in the Committee’s view, while this is
necessary, it cannot be the sole response to irregular situations.

(1) Opinion on the Communication from the Commission on a
common asylum procedure, in OJ C 260 of 17.9.2001 (rapporte-
ur: Mr Mengozzi).

3.5.2. Within the framework of policy coordination, the
Commission should urge the Member States to prepare
regularisation measures, averting the risk of irregular immi-
gration being considered as a ‘back door’ to legal immigration.
In regularising the situation of those involved, consideration
should be given to the degree to which they have settled in
social and employment terms.

3.6. Cooperation on visa and border control policy

3.6.1.
Cooperation with the countries of origin is a crucial
instrument for channelling migratory flows on a legal basis,
and for forestalling illegal immigration.

3.6.2.
In issuing visas and controlling external borders, the
Member States must cooperate with each other and comply
with the obligations they have assumed. It is worth bearing in
mind that the EU’s external borders are going to come under
major pressure from migrants in the coming years.

3.6.3.
Coordination and exchange of information between
liaison officers is needed in order to implement this joint
policy.

3.6.4.
The Committee wishes to support the Commission’s
proposal to set up a European border guard with common
standards and a harmonised training curriculum.
In the
medium term, steps should be taken towards the creation of a
border guard school. Border controls should be carried out by
officials who are skilled in dealing with people and possess
thorough technical know-how.

3.6.5.
It is very important to provide financial assistance
for third countries in combating trafficking and in managing
legal migratory flows; these require preventive information
campaigns targeting irregular immigration. The social partners
and other civil society organisations could take part in such
campaigns.

3.6.6.
The Committee would point out that priority finan-
cial assistance should be given to the applicant countries,
which will be subject to transitional periods before their
workers enjoy freedom of movement. These countries will also
be asked to make additional efforts in terms of border controls
and their own immigration flows.

3.7. Combating organised crime

Europol’s role in detecting and dismantling criminal
3.7.1.
networks involved in smuggling irregular immigrants should
be stepped up. Europol should be given more operative
powers, with full implementation of Article 30 of the Treaty
on European Union. No effort should be spared in tracking
down the financial networks connected with trafficking and
smuggling of human beings.

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3.7.2.
Eurojust and the European judicial network should
be reinforced in order to tackle organised crime, money
laundering and the networks engaged in smuggling human
beings. The Convention on mutual legal assistance merits the
support of the Committee.

tarian values. The Member States of the EU must not enter into
readmission agreements with third countries where serious
political instability or human rights’ violations are rife. The
Committee will scrutinise the green paper on a Community
return policy with great care.

3.7.3.
The Committee gives its full backing to the Council
and Commission in combating smuggling and trafficking in
human beings. New criminal provisions are required to
increase penalties; these offences should fall within the remit
of the common police and judicial area being developed by
the EU in order to combat terrorism and organised crime.

3.8.

European Migration Observatory

The Committee considers that the Commission’s
3.8.1.
proposed action plan contains positive elements, particularly
the establishment of a European Migration Observatory to
monitor and carry out comparative analysis of both legal and
irregular migratory flows, and the creation of an early warning
system on illegal immigration.

3.9. Return policy

Turning to readmission and return policy, the Com-
3.9.1.
mittee would emphasise that the voluntary aspect should be
encouraged, and the utmost consideration given to humani-

Brussels, 25 April 2002.

4. Concluding comments

4.1.
The Committee welcomes the Commission’s proposal
for civil society to be involved in efforts to prevent and
fight illegal immigration. The European Economic and Social
Committee can also contribute to the drafting of the proposed
action plan.

A common policy against illegal immigration must
4.2.
take account of all its contributory factors. It must not be
restricted to law-enforcement and judicial policies alone which,
although certainly necessary, cannot by themselves diminish
irregular immigration.

The Committee calls for greater speed and responsi-
4.3.
bility on the part of
in its legislative work
the Council
concerning immigration and asylum. The present delay in
drafting the directives and regulations proposed by the Com-
mission makes it difficult to ensure that migration takes place
through legal channels.

The President

of the Economic and Social Committee

Göke FRERICHS