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Justice and Home Affairs Council

Volume 528: debated on Thursday 19 May 2011

The Extraordinary Council which focused on interior issues was held on 12 May in Brussels. I represented the United Kingdom.

The Council started with an EU ministerial breakfast with the Director of the Joint Situation Centre (SitCen) who presented his assessment of the situation following the death of Osama bin Laden and changes in north Africa. Gilles de Kerchove, EU Counter-terrorism Co-ordinator, highlighted that cargo security was a priority for the EU and engagement with north African countries was essential. The UK noted that the death of Osama bin Laden was a strategic blow but the risk remained serious including from reprisal attacks and the events in north Africa served to undermine the al-Qaeda narrative.

Next the Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen states), received a state of play update on the Frontex regulation. The presidency said they would not be able to reach agreement with the European Parliament by June unless member states were flexible. Compromise would be necessary on several of the Parliament’s demands, including the precise name of its proposed “European Border Guard System”. The presidency stressed that the whole deal should not collapse because of disagreements over terminology. The UK is excluded from the Frontex regulation; however the UK can support activities on a case-by-case basis with the agreement of the Frontex management board.

Next there was a discussion on immigration, preparing the forthcoming June European Council discussion on migration and the Commission communication on migration. Commissioner Malmström introduced the communication and set out the Commission’s priorities across all aspects of EU immigration and asylum policy. She put particular emphasis on: an effective EU response to developments in north Africa; agreeing a package deal on asylum; building conditionality into the EU’s third-country agreements to deliver immigration results; and effectively combining mobility with security. On reintroducing intra-Schengen border controls, Commissioner Malmström underlined the fundamental importance of Schengen, highlighting that (based on existing legislation and an EU-level approach), the Commission’s proposals would reinforce, not undermine, the Schengen framework. Guidelines would address differing interpretation of the rules, and new co-decision proposals would strengthen Schengen monitoring and evaluation to better define when and how controls could be used; that is, in exceptional circumstances and through an EU-level procedure.

The UK stated that, in order to achieve tangible results, the immediate priorities had to be border security, returns and practical support to member states. The UK wanted to see a border control taskforce sent to Tunisia to support capacity-building, provide technical assistance and support Frontex’s efforts against people smuggling. On returns, the EU should do more to help return third-country nationals in north Africa back to their countries of origin. We were seeing increased numbers of asylum claims already; the Support Office should help responsible member states deal with them. Relocation was not the answer. The UK said that co-operation on migration should be an integral part of the EU’s partnerships with third countries. Building stability and prosperity was in everyone’s interests, and would help relieve migratory pressure. But the EU had to reinforce the principle that each country must readmit its own nationals—that was not dependent on financial incentives or visa liberalisation. The UK would not want to see a single system of European border guards, but did support greater co-ordination and co-operation. We were surprised to see proposals for further harmonisation given current high-levels of unemployment within Europe. On asylum, the UK was clear that any talk of invoking the temporary protection directive was premature and that it did not support relocation proposals as they carry a risk of acting as a pull factor to the UK. The UK was supportive of any reforms decided on by the Schengen countries that would help combat illegal immigration and strengthen the external border. Free movement was an ideal at the heart of the EU, but it was an ideal that was jeopardised when abused. Every action had to ensure that member states could maintain fair and robust immigration systems, and do nothing to create an incentive for illegal immigration into Europe.

The main Council commenced with the Commission outlining its proposals for a revised strategy on EU readmission agreements. The Commission defended increased references to human rights provisions and the introduction of a post-returns monitoring mechanism for returnees. If member states wanted the European Parliament to agree to future negotiating mandates, they would have to accept an enhanced profile for human rights. The UK believed that readmission agreements were operational instruments for facilitating returns and protection needs were already carefully considered before a return decision is reached. Therefore it was not necessary to include additional references to human rights in the agreements. Any decision on whether it is safe to return, an individual should be made on a case-by-case basis and the Commission’s proposed blanket approach to suspending returns was misguided. The UK added that the Commission’s proposal for a post-return monitoring mechanism was inappropriate as it could put returnees at risk. The UK stated that the starting point for any readmission strategy should be a country’s obligation to readmit their own nationals and co-operation should not be solely dependent on incentives such as visa facilitation. The UK supported the Commission’s proposal to refocus its readmission strategy on key countries, but noted that objective criteria would be needed as member states would have different geographical priorities. The presidency said they would draft Council conclusions (which would make reference to the importance of human rights) for consideration at the June JHA Council.

The Council received an update on the situation in Japan at the request of Belgium. The Commission said that member states had made an impressive contribution to the effort in Japan, but that this had been a wake-up call. The Commission had developed an action plan and had already started to implement the communication on strengthening disaster response. There was a need to prioritise scenario development, and they would be developing legislative proposals by the end of the year. The presidency said that the subject should be further discussed at the working level.

The Commission presented its evaluation report on the data retention directive. Most member states seem to be happy with the current directive, but it was a flexible instrument and there were large differences in how it is implemented. Member states had the opportunity to revise the directive and the Commission would submit a proposal later this year. The UK said that retained communications data were a critical tool. Ninety-five per cent of serious crime investigations used retained data, as had all major counter-terrorism investigations. It was also used on a daily basis to secure convictions and alibis. The UK did not wish to see changes made in the name of harmonisation since it should not undermine operational effectiveness.

Finally, over lunch Ministers discussed the asylum aspects of the Commission’s communication on migration. The presidency and Commission tried to set up a political deal on asylum at the June European Council. The Commission said it was time to compromise; technical meetings could go on for years a package deal was needed to break the deadlock of red lines that included an emergency mechanism in Dublin in return for law enforcement access to Eurodac. Recognising that they were the most difficult directives, Commissioner Malmström set out the features of the forthcoming amended proposals on procedures and reception conditions (simplification, clarification and reduction of financial and administrative burdens). The scope for using accelerated procedures would be extended and it would be easier to reject repeated abusive claims.

There would be more flexibility on border procedures to address national security and public order concerns and a lower reporting burden. Access to the labour market could be delayed if applicants did not co-operate. The UK opened the discussion: the goals of the EU’s engagement in asylum had to be practical, not legislative—both in relation to the current situation, and looking to the long-term. Refugees had to be protected, but protected where they were—they should not be expected to move around the EU. The Asylum Support Office would help member states do that (as with the Greece action plan), but further legislation to meet an artificial deadline was a distraction. The UK could not support an emergency mechanism under Dublin—it would undermine the very principle of member state responsibility for asylum claims, remove the incentive to make necessary reforms, move the problem from one place to another, and would encourage asylum seekers to target particular member states (knowing they could then move to their destination of choice). The presidency would ask COREPER to try to prepare a package for political agreement at the European Council.