Why Britain will lose control over policy on immigration
and asylum seekers
By
David
Heathcoat – Amory
EUROFACTS
Vol 9 – No 5/6
19th
December 2003
In his party conference speech this year (2003). Tony
Blair announced some bold changes to our asylum and immigration laws. He promised
‘to cut back the ludicrously complicated appeal process, de-rail the gravy
train of legal aid, fast track those from the democratic countries and remove
those from who fail in their claims without further judicial interference’. An
Immigration and Asylum bill was duly promised in the Queen’s speech.
How odd therefore, that Blair should be simultaneously
agreeing to a European Constitution, which will not only transfer these
decisions to the EU. but will prevent member states legislating in this area at
all.
Part
three of the European Constitution describes how the Union, ‘shall develop a
common immigration and asylum policy’
(articles 111-167 and 168), The instrument for this shall be European
Laws or framework laws, which in all cases means majority voting without
any NATIONAL vetoes.
These
laws will determine visas, residence permits, the conditions of entry and
residence, and the ‘removal and repatriation of persons residing without
authorisation’. The policy requires a ‘uniform status of asylum for nationals
of third countries, valid throughout the Union’. The Constitution provides
elsewhere for social security benefits for all migrant workers to be decided by
majority voting.
All this of course in the context of a Union, which
ensures, ‘the absence of any control on persons, whatever their nationality,
when crossing internal borders’.
The
British government may claim that it has an opt-out from the requirement to
abolish border controls. This was done at Amsterdam when the Schengen agreement
was brought into the Treaty. But there has been no sign of the Protocol
guaranteeing this opt-out. It is not included in the draft European
Constitution, though the government say it will still be valid.
But
even if the Protocol is somehow carried forward, it has already lost part of
its force because the government has chosen to opt in to certain EU-wide
agreements on asylum and immigration, such as Eurodac and the second Dublin
convention. So EU law is already having effect in this area. And this is where there
is another important twist.
Under
the Constitution, the whole area of ‘freedom, security and justice’ becomes a ‘shared
competence’. This is defined to mean that when the Union legislates, member
states cannot. So
when the new Union gets busy with its new Constitutional powers, national
governments will be frozen out and national parliaments paralysed.
Flatly Untrue
I
recently challenged Blair at Prime Minister’s Questions on why he was promising
legal changes at home while simultaneously giving up power to deliver them. He
had clearly never thought about it. He made an irrelevant comment about the
Charter of Fundamental Rights, and then said:’ As for the laws that we propose
in this country, under the European Constitution we shall have every right to
pass them, and we will do so’.
This
is flatly untrue. There is a long list of ‘shared competences’ in the Constitution. As
well as criminal justice and immigration, it includes transport, energy, social
policy, the environment and public health. When the Union Legislates in these areas,
member states will not be allowed to.
It
is extraordinary that we have a Prime Minister who has persuaded himself that
the legal powers of the Union under the new Constitution will somehow never be
used. Or has he just never read it?
He
was at it again at the press briefing on 23rd October 2003. This time
he expressed frustration about the 1951 Geneva Convention on Refugees, rightly
pointing out that it is out of date and contributed to the flood of asylum
seekers. He suggested that ‘National measures’ should be taken to escape its
obligations.
Unfortunately,
this too will be impossible if we sign up to the European Constitution. The
articles on asylum require compliance with the Geneva Convention. The same obligation appears in the Charter
of Fundamental Rights, which will of course be an integral part of the
Constitution. So again Blair is signalling a change of policy, which will be
illegal if he agrees to the European Constitution.
There
is a bigger issue here, the issue of self –government. Every country has a
right to decide who its citizens are, and who may be admitted and on what
terms. Such controls must be
democratically arrived at and capable of change. This is the best bulwark
against extremist parties seeking to exploit the issue of immigration and race.
The
European Constitution will transfer these decisions to the Union. It will stretch the
democratic elastic to breaking point. Nor will it work. The same organisation, which mis-manages
every large policy under its control, will hardly make a success of a Common
Immigration Policy.
The
same is true of all the other’ shared competences’. They form the bulk of
present legislation in the House of Commons. They are the issues, which are
argued out in the political debate, scrutinised by the Press, and decided at
General Elections. Under the European Constitution, they will become only
residual matters for the House of Commons, able to pass laws only if the new
Union chooses not to.
All
this is dangerous. But what is really frightening is that we have a Prime
Minister who seems to think it is not happening.
* * *
David
Heathcoat-Amory MP was the Conservative Parliamentary Representative on the
Convention on the Future of Europe.
DECEMBER-2003
*
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