Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions’ — ‘Study on the links between legal and illegal migration’(COM(2004) 412 final)
Date: 2004-12-15
Institutions: European Economic and Social Committee
Subjects: EU migration policy, admission of aliens, cooperation policy, foreign national, illegal migration, immigration, labour market, underground economy

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4. Conclusion

4.1
Gender equality has been supported by 30 years of legis-
lation and whilst the EESC commends the Commission for its
move to simplify and make the directive easier to read, true
equality across Europe cannot be achieved without positive
action on the part of all Member States in demanding equal
treatment for men and women. The Committee believes that
exchanging and promoting good practices and increasing social
dialogue in this field are a concrete way of delivering progress
and fully recognizes the fundamental role of the social partners,
highlighting their activities within the ‘Work Programme of the

European Social Partners 2003-2005’. The Commission must
do more in promoting equal treatment, equal opportunities
and the value of women to the European economy in order to
achieve the Lisbon goals.

4.2
The EESC would request the Commission to consider
encouraging Member States to produce a guideline booklet
highlighting the main features of European gender directives as
they have been transposed into national legislation, the obliga-
tions of employers and the rights of employees, to remove the
ignorance surrounding equal treatment and enhance the bene-
fits to the economy.

Brussels, 15 December 2004.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

Opinion of the European Economic and Social Committee on the ‘Communication from the
the European Economic and Social
Commission to the Council,
Committee and the Committee of the Regions’ — ‘Study on the links between legal and illegal
migration’

the European Parliament,

(COM(2004) 412 final)

(2005/C 157/15)

On 4 June 2004, the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned
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 24 November 2004. The rapporteur was Mr
Pariza Castaños.

At its 413th plenary session on 15 and 16 December 2004 (meeting of 15 December 2004), the European
Economic and Social Committee adopted the following opinion by 138 votes, with 8 abstentions.

1. Summary of the Communication

The Thessaloniki European Council of

1.1
July 2003
stressed the need for the EU to explore legal means for third
country nationals to migrate to the Union, taking into account
the reception capacity of the Member States, within the frame-
work of an enhanced co-operation with the countries of origin.
The Commission has presented the results of a study requested
by the European Council on the links between legal and illegal
migration. It asks whether or not legal avenues for the admis-
illegal migration.
sion of migrants
Following this Communication, the Commission will present a
Green Paper on legal channels for immigration.

reduce incentives

for

country nationals for the purpose of employment is governed
by the legislation in force in each Member State and this varies
considerably. Some States have closed their doors to labour
migration, whilst others have policies that allow immigrant
workers to enter the country if they have a job offer, with due
respect for the principle of national preference. Some States
also admit self-employed workers. Most economic migrants are
initially admitted on a temporary residence permit, which may
last from between one to five years.

1.2
In the first part, the Commission examines existing
legal channels for labour migration. The admission of third-

The number of economic immigrants admitted by States
1.3
in any given year is also determined by very different methods.
Some States only accept highly skilled workers (for example
the German Green Card system) and the United Kingdom's

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Highly Skilled Migrant Programme). Others (a number of
southern European States) also accept
less skilled workers
under a range of procedures. Some States, such as Italy, use a
quota system. Others, including Spain, have even signed bilat-
eral agreements with some countries to allow their nationals to
be admitted. The Commission Communication examines the
various instruments used to manage immigration.

known as the Committee on Immigration and Asylum, the
initial creation of the European Migration Network (on which a
pilot project has run throughout 2004) and the creation of a
Integration. With
network of National Contact Points for
regard to illegal immigration, an early-warning system has been
set up and progress has been made on information exchanges.

at

The Commission also looks

1.4
regularisation
measures adopted in various countries, such as Belgium. On
the one hand, these measures are welcomed because they inte-
grate immigrants into society and prevent them from being
exploited in the workplace, but on the other, they are criticised
because they act as an incentive for illegal immigration.

the

1.5
In the second part, the Commission points out that
illegal immigration takes many forms and that it is extremely
difficult to obtain precise information. Although the exact scale
of illegal immigration in the EU is not known, it is estimated to
be considerable. Reducing illegal immigration flows is therefore
a priority at both national and EU levels.

the clear

The Commission highlights

1.6
link between
hidden economies, unregulated labour markets and illegal
immigration, especially in sectors such as construction, agri-
culture, catering, and cleaning and house-cleaning services.
Within the EU, the shadow economy represents between 7 %
and 16 % of GDP.

1.10
The Commission believes that due to the effect of
demographic decline and ageing, recruitment of third country
national workers and immigration for economic reasons into
the EU is likely to continue and increase. Countries of origin,
too, are repeatedly asking for more legal migration channels.

1.11
The Commission draws attention to the fact that its
proposal for a Directive on the admission of workers (1), tabled
in 2001, received no support from the Council. It asks whether
the admission of economic migrants should be regulated at EU
level, the degree of harmonisation to aim for and whether or
not the principle of Community preference for the domestic
labour market should be maintained. The Commission states
that the draft Treaty establishing a Constitution for Europe
confirms European competence in migration policy, but leaves
the Member States to decide the number of migrants to be
admitted; there is also the need for measures adopted in this
field to provide added value at EU level. At the end of this year,
the Commission will present a Green Paper on the proposal for
a Directive and the difficulties within the Council, and will
organise a public hearing at the end of 2004.

1.7
The impact of existing legal channels, such as bilateral
agreements, on reducing illegal immigration is extremely diffi-
cult to gauge. The Commission points out that the Member
States have not carried out the necessary evaluations. Nor has
an evaluation been made of the impact of visa policy on redu-
cing illegal immigration.

The Commission considers that regularisation measures
1.12
have helped to deal with a large number of illegal migrants, but
must not be seen as an appropriate way of managing migration
flows. The Committee on Immigration and Asylum must
further analyse regularisation procedures with a view to identi-
fying and comparing practices.

1.8
It is hoped that closer cooperation with the countries of
origin will help to reduce illegal immigration flows. This was
recommended at the Tampere, Seville and Thessaloniki Euro-
pean Councils. Currently, however, Member States' experience
implementing closer cooperation is limited and the results are
not, on the whole, particularly striking. The Commission
suggests that
it might be necessary to adopt a different
approach to the incentives offered to third countries.

1.9
In the third part, the Commission presents its conclu-
sions and suggests approaches to follow. Given the clear lack
of reliable and comparable data at EU level, the Commission
has agreed to present an annual statistical report on migration,
which will
coordinated and
exchanged between Member States. It refers to the steps taken
to date: the establishment, in 2002, of the group of experts

information to be

require

of

the

third

integration

Strengthening

1.13
country
nationals legally residing in the Member States is an essential
objective which, in the Commission's view, must form part of
all future proposals. A fundamental aspect of this objective is
integration into the labour market, and this is why the
Commission recalls the need for measures such as reducing the
unemployment gap between nationals of third countries and
EU nationals. Reference is also made to the importance of
promoting greater mobility in the EU labour market, which has
already been facilitated by the 2003 Directive on long-term
residents (2) and by Regulation 1408/71. The recognition of
professional qualifications of third-country nationals also needs
to be improved.

(1) COM(2001) 386 final
(2) Directive 2003/109/EC

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1.14
The Commission is of the view that undeclared work is
a significant pull factor for illegal migration, and the main aim
must therefore be to transform undeclared work into regular
employment. This objective is already included in the employ-
ment policy guidelines.

Developing a Community return policy, amongst other
1.15
policy instruments,
is also a priority, to ensure that illegal
immigrants return to their country of origin. The Commission
proposes to create a financial instrument for return manage-
ment for the years 2005 and 2006.

Lastly,

this study has
the Commission states that
1.16
confirmed that stepping up cooperation with countries of
origin or transit is necessary to reduce illegal migration flows
and to organise legal
immigration. All available information
must be pooled in order to determine how well this coopera-
tion is working. The idea of developing training programmes in
countries of origin in skills which are needed by the EU could
be explored. There are also others, such as partially amending
visa policy to establish some categories for which visas can be
issued more rapidly.

It

2.3
is hard to understand why the Council has not
adopted the Directive on the admission and residence of immi-
grant workers proposed by the Commission in 2001. In its
opinion (3) the EESC considered the Commission proposal to be
welcome but insufficient, proposing that two channels should
be available for the admission of workers: obtaining a work
and residence permit in their country of origin, and also the
possibility of a temporary entry and residence permit for the
the
purpose of seeking work.
Commission has fulfilled its obligations arising from Tampere,
but the Council, with the attitude it has demonstrated, has lost
sight of this aim.

In proposing this Directive,

2.4
In response to the Commission's question, the EESC
would state that it is indeed necessary for the admission of
economic migrants to be regulated at EU level; to ensure this,
there must be a high degree of legislative harmonisation, as set
out in the draft Treaty establishing a Constitution for Europe.
In previous opinions (4) the EESC has already called for the EU
to rapidly develop a common immigration policy and harmo-
nised legislation. The Committee will examine the Green Paper
being drawn up by the Commission and will issue an opinion
on the matter.

2. General comments

3. Specific comments

2.1
The EESC welcomes the fact that the Commission is
presenting this Communication, which gives a new boost to
Community
immigration policy. Discussions within the
Council are progressing extremely slowly due to the rather
uncooperative attitude of some governments. The EESC has
already stated in various opinions that there is a clear link
between legal
immigration. Where
adequate, transparent and flexible channels for legal immigra-
immigration increases (1). A sound
tion do not exist,
asylum policy is also needed, as is harmonised legislation that
guarantees adequate protection for those in need of interna-
tional protection.

immigration and illegal

illegal

2.2
The Communication from the Commission on immigra-
tion, integration and employment (2) and the Thessaloniki Euro-
pean Council expressed the view that the number of economic
migrants from third countries will increase markedly in the EU
over the coming years. The increase in economic immigration
is being seen in both highly skilled and low-skilled jobs. As the
immigration should be channelled through
EESC has stated,
legal and transparent means in order to avoid the problems
currently experienced by the labour markets.
In order to
achieve this, there must be appropriate cooperation between
the authorities and the social partners.

(1) Opinion on the Communication on a Community immigration
policy, in OJ C 260 of 17.9.2001, rapporteur: Mr Pariza Castaños

(2) COM(2003) 336 final

Existing legal channels for labour migration are inade-
3.1
quate. Bilateral agreements, quotas, programmes for the admis-
instruments
sion of highly skilled workers and the other
currently available are clearly not sufficient
to ensure that
economic migration occurs through the legal channels, because
illegal immigration continues to increase. The European Union
and the Member States need an open form of legislation that
allows labour immigration through channels that are legal and
transparent, for both highly skilled workers and those working
in less skilled jobs.

Various Member States have decided to open up immi-
3.2
gration only to highly skilled workers. The Commission
Communication looks at the experiences of Germany and the
United Kingdom. The EESC considers that these are extremely
limited experiences, which should be viewed positively,
although they fail to meet existing needs in these sectors of
employment. Furthermore, Member States should have new
legal
the less skilled
workers required by their labour markets, who are currently to
a large extent involved in the hidden economy and in illegal
employment and immigration, especially in sectors such as
domestic help, healthcare, personal
agriculture,
catering, construction, etc.

the immigration of

instruments for

services,

(3) Opinion in OJ C 80 of 3.4.2002, rapporteur: Mr Pariza Castaños
(4) Opinion on the Communication on Community immigration
policy, OJ C 260, 17.9.2002, rapporteur: Mr Pariza Castaños and
Opinion on the Communication on illegal immigration, OJ C 149
of 21.6.2002, rapporteur: Mr Pariza Castaños

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3.2.1
It is extremely important that would-be immigrants
have sufficient and clear information on existing instruments
governing legal
immigration in the Member States. The
consular services must pass this information on to the coun-
tries of origin and,
immigrants
must be informed about these instruments.

in Europe's reception States,

3.5
There are many people in the EU, ‘without papers’ who,
as the Commission states, work illegally and in the hidden
economy. These people have entered the EU illegally or have
reached the end of their legal stay and have not returned to
their country of origin. The Commission Communication looks
at return and regularisation policies.

3.3
Furthermore, the bilateral agreements between Member
States and third countries to regulate labour migration consti-
tute an extremely positive development, because they are
managed through cooperation with the countries of origin,
which is what the Council, the Commission, the European
Parliament and the EESC have been calling for since Tampere.
Most of these agreements are used to manage temporary immi-
grants and those in low-skilled jobs. The EESC would like it
noted, however, that these agreements could be more effective
if they were managed in collaboration with the social partners
in Member States and countries of origin. These experiences
have also highlighted problems in Member State consular
offices, which lack staff specialised in labour migration.

The EESC also proposes that, on the basis of the asso-
3.3.1
ciation and cooperation agreements between the EU and
various third countries, the EU could develop specialised labour
migration departments. Association and cooperation agree-
ments between the EU and third countries could cover oppor-
tunities for labour migration and training programmes. Migra-
tion to Europe by qualified workers from the countries of
origin could create a new barrier to the development of those
countries and the European Union and the Member States
must, therefore, cooperate with them to ensure that immigra-
tion becomes a factor for development and not an additional
problem.

3.3.2
Furthermore, those countries do not enjoy a balanced
relationship with the EU in terms of trade and financial and
technological
flows. The association and cooperation agree-
ments between the European Union and third countries must
contain new political and economic instruments that make a
positive contribution to the development of those countries.
This is the only way to secure sound cooperation on preventing
illegal immigration. Full cooperation between the EU and devel-
oping countries is also needed in the framework of the WTO.

3.4
Some Member States use a quota system to manage the
bilateral agreements, once they have assessed the needs of their
labour market,
in collaboration with employers' associations
and unions. Due to falling numbers and the cumbersome
bureaucracy that this system creates, the results are not as good
as expected. An example is provided by the States in which
immigration is increasing considerably (such as Spain)
illegal
and yet the quotas have not been met. A more flexible system
for managing quotas might be more useful, for example,
if
temporary visas for the purpose of seeking work were to be
issued, as the EESC suggested in its opinion (1) on the Directive
on admissions.

3.6
The EESC does not agree with the Commission's state-
ment that the only coherent approach to dealing with illegal residents
is to ensure that they return to their country of origin (2). This is not
a realistic approach, because the systems and instruments for
return are not equal to the task of addressing the situation
facing millions of people. In its opinion (3) on the Green Paper
on a Community return policy on illegal residents, and in its
opinion (4) on the open method of coordination, the EESC has
already expressed its position: The EESC believes that compulsory
return should not be the EU's only or prime response to immigrants
currently in the EU in an irregular situation. What is needed is a
comprehensive policy incorporating both return and regularisation (5).
If the policy of compulsory return is not combined with regularisation
measures, the numbers of people in irregular situations will remain
unchanged,
feeding the hidden economy and leading to increased
exploitation in employment and social exclusion (6). The EESC hopes
that Community policy will promote programmes for volun-
tary return and believes that forcible return should be reserved
for situations in which such action is truly justified, as the
EESC stated in the aforementioned opinion on the Green Paper
on a Community return policy (7).

The EESC has already stated that the status of the many
3.7
people in an irregular situation should be regularised, under
certain conditions linked to the degree to which they have put
down roots in social and employment terms (8). The Council
and the Commission are right to assert that undeclared work
must be transformed into regular employment and, to achieve
this, there must be cooperation from the persons concerned,
many of whom are illegal immigrants. The cooperation of the
social partners is also required (9).

(2) Point 3.2.2. of the Communication
(3) See OJ C 61 of 14.3.2003, the rapporteur was Mr Pariza Castaños
(4) See OJ C 221 of 17.9.2002, the rapporteur was Mrs zu Eulenburg
(5) See point 2.2 of the EESC opinion on the Green Paper on a Com-

munity return policy on illegal residents

(6) See point 2.4 of the same opinion
(7) See OJ C 61 of 14.3.2003: rapporteur, Mr Pariza Castaños
(8) Opinion on the Communication on Community immigration
policy, OJ C 260, 17.9.2001;
the rapporteur was Mr Pariza
Castaños. Opinion on the Communication on Community immigra-
tion policy, OJ C 149, 21.6.2002, the rapporteur was Mr Pariza
Castaños. Opinion on the Green Paper on a policy of return for
illegal residents, OJ C 61 of 14.3.2003; the rapporteur was Mr
Pariza Castaños

(1) See OJ C 80 of 3.4.2002, the rapporteur was Mr Pariza Castaños

(9) Opinion being drawn up, SOC/172, rapporteur: Mr Hahr

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Illegal

3.8
immigration is closely linked to the hidden
economy and to undeclared work. Immigration is only one
aspect of the hidden economy, however, and the features of
illegal employment constitute a pull factor for illegal migration
flows. The EESC therefore welcomes the legislation in place in
some Member States making it easier to regularise the situation
of these persons, for employment or humanitarian reasons, or
because
already integrated into society. This
approach might also help to prevent a build-up of persons in
an illegal situation, necessitating extraordinary regularisation
procedures. These instruments must be transparent and must
be implemented with the necessary information and coordina-
tion between Member States.

they have

3.9
Immigrants must be fully integrated into the European
labour market, through the promotion of greater mobility. The
EESC supported (1) the Directive on the status of third-country
nationals who are long-term residents, which will make mobi-
lity easier for immigrants who are granted this status. The EESC
also supported extending Regulation 1408/71 (2)
to cover
third-country nationals. It would be appropriate to extend this
mobility to other
the European
Employment Strategy, also making use of the EURES network.

immigrant groups, under

3.9.1
The Commission states that the proposal for a Direc-
tive on services in the internal market for the provision of
cross-border services will also increase mobility. The EESC is
drafting an opinion (3) that contains a number of proposals to
remedy the problems created by this Directive.

from this situation, but consideration must be given to the risk
that the number of persons falling victim to human trafficking
networks could increase. The EESC supports using the visa
instrument only in exceptional circumstances. The Visa policy
could restrict the mobility of persons in a severely discrimina-
tory way, which means
is
required of the consular authorities' — a form of management
that is transparent and which eliminates any potential corrup-
tion.

that appropriate management

3.12
The EESC agrees with the Commission's assertion that
combating illegal immigration must continue to be a crucial
part of managing immigration. Opening legal channels for
labour migration, reducing the scale of the hidden economy
and illegal employment, cooperation with the countries of
origin, etc., must be accompanied by truly effective monitoring
of the EU's external borders.

Criminal organisations involved in trafficking human
3.13
beings are extremely powerful and are linked to other criminal
activities. In various opinions (4), the EESC has called for crim-
inal networks trafficking in human beings to be combated
more effectively. Cooperation between the Justice and Home
Affairs authorities of the Member States and the European
Commission must be improved. EUROPOL and EUROJUST
must be provided with the most appropriate political, legal and
administrative instruments. Work must be speeded up on the
European Border Control Agency and also,
in the medium
term, on setting up a European border guard service.

3.10 Many immigrants are unable to undertake work that
matches their training because the authorities in the Member
States do not recognise their professional qualifications. The EU
in
must extend the Directives on professional qualifications,
order to facilitate the recognition of those obtained in the
country of origin. This will prevent situations of discrimination
from arising and Member States and European companies will
both gain more from people's work if they take account of
their professional qualifications.

3.13.1
Some parts of Europe, such as the southern islands
(including Malta, Lampedusa and the Canaries), face particular
difficulties because they form mid-way points for illegal immi-
gration and sometimes receive more migrants than they are
able to integrate. The European Union must therefore develop
a system of solidarity to resolve these situations.

The lack of adequate data means that the impact of
3.11
visa policy on reducing illegal
immigration cannot be evalu-
ated. The requirement for a short-term visa for third-country
citizens might reduce the volume of illegal immigration arising

(1) Opinion on the Directive concerning the status of third-country
nationals who are long-term residents, OJ C 36 of 8.2.2002, rappor-
teur: Mr Pariza Castaños

(2) Opinion on Regulation (EEC) No. 1408/71 in OJ C 157 of

25.5.1998, rapporteur: Mr Liverani

(3) Opinion on the proposal for a Directive on services in the internal

market. Rapporteur: Mr Metzler, co-rapporteur: Mr Ehnmark

3.13.2
The illegal trade and trafficking in persons must be
combated whilst guaranteeing that victims are protected by
international humanitarian legislation and by the European
conventions on human rights. Illegal immigrants form part of
vulnerable groups that require special protection. Their lives
and safety are the priority. The EESC adopted an opinion (5) to
improve victim protection.

(4) Opinion on illegal immigration OJ C 149 of 21.6.2002; opinion on
the Border Agency, OJ C 108 of 30.4.2004, and on the ARGO
programme (SOC/186), rapporteur: Mr Pariza Castaños

(5) Opinion on the Proposal for a Council Directive on the short-term
residence permit issued to victims of action to facilitate illegal immi-
gration or trafficking in human beings who cooperate with the
competent authorities, OJ C 221 of 17.9.2002,
rapporteur:
Mr Pariza Castaños

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3.14
The EESC supports the establishment of an open
method of coordination for immigration and asylum policy (1).
The EU currently has a Committee on Immigration and
Asylum, which is doing sterling work coordinating and
advising, but its mandate is inadequate. The Thessaloniki Euro-
pean Council provided for a pilot project to establish a Euro-
pean Migration Network. This Network warrants the EESC's
support, because it represents a step towards better coordina-
tion within the EU.

3.15
The EESC welcomes the fact that the aims of Com-
munity immigration policy include measures for integration, as
the Committee has called for (2). The reception given to newly
arrived immigrants, their integration into the labour market,
language training, combating discrimination, and participation
in civil, cultural and political life must be strategic aims for the
EU. The EESC considers it crucial for the social partners and
civil society organisations to support the public authorities on
integration policies.

3.15.1.
The Committee wishes to convey the idea to the
people of Europe that immigrants are much-needed members
of our community and contribute to Europe's economic, social
and cultural enrichment. The EESC wishes to continue to coop-
erate actively with the other EU institutions to ensure that the
Tampere objectives are met and that an appropriate common
immigration policy is implemented and that
legislation is
harmonised. With this aim in mind, the Committee will be
putting in place a permanent instrument (3) in conjunction with

Brussels, 15 December 2004

(1) Opinion of Ms zu Eulenburg in OJ C 221 of 17.9.2002
(2) Opinion in OJ C 125, 27.5.2002, on Immigration, integration and
the role of civil society organisations; conference organised by the
EESC and the Commission on 9 and 10 September 2002: Immigra-
tion: the role of civil society in integration.

(3) To be decided on (a monitoring centre, annual conference ...)

the Commission, with the social partners and with civil society
organisations. Combating racism, xenophobia and discrimina-
tion is the way to achieve equal treatment and integration.

The Social Agenda (4) currently contains a number of
3.16
objectives for promoting integration, combating discrimination
and ensuring equal treatment. In the coming years, as a conse-
the
quence of
objectives of the EU's social policy guidelines will have to be
adapted.

increasing numbers of

immigrants, some of

that

The EESC underlines the fact

3.17
the draft Treaty
establishing a Constitution for Europe has laid new foundations
for Community immigration policy and recalls that it adopted
an own-initiative opinion (5) proposing that Treaty should grant
EU citizenship to third-country nationals with long-term resi-
dent status, in order to make it easier for them to exercise their
political rights and to promote integration. The EESC also
adopted an own-initiative opinion (6) proposing that
the
Member States of the European Union ratify the International
Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, which was approved
by the General Assembly of the United Nations (7), which aims
to protect the human rights and dignity of people across the
globe who emigrate for economic or employment-related
reasons by means of appropriate legislation and good national
practice. Once again, the Committee calls on the Council and
the Commission to consider ratifying this convention.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(4) Opinion of the EESC on the Communication on the mid-term
review of the social policy agenda, OJ C 80 of 30.3.2004, rappor-
teur: Mr Jahier
(5) Opinion: Access

to European Union citizenship,

in OJ C 208 of

3.9.2003, rapporteur: Mr Pariza Castaños

(6) Opinion:

International Convention on Migrants (OJ C 241 of

28.9.2004), rapporteur, Mr Pariza Castaños

(7) Resolution No. 45/158 of 18 December 1990, in force since 1 July

2003