Morales and the EU Return Directive

 President Morales and the EU Return Directive

The Guardian, Indymedia and other outlets this week published the following article, attributed to President Evo Morales of Bolivia. It marks the consent of the EU Council of Ministers on the content and provisions of the "Return Directive". The Directive passed all stages of consent within the EU decision-making process having been agreed by the European Parliament on Wednesday June 18th 2008. It has yet to be ratified and implemented individually by the 27 member States. The Directive sets out provisions to return illegal immigrants to their home country. At present, EU States have different time frames, procedures and detention arrangements to deal with illegal immigrants.

This posting reprints the Morales article in full; it offers a critique; contrasts the Bolivian perspective with the Irish Government's position on illegal Irish immigrants in the US and it considers aspects of immigration policy in Ireland and the EU.

Full text of the Morales Article

Until the end of the Second World War, Europe was a continent of emigrants. Millions left fo the Americas: some to colonise, others to escape hunger, financial crises, persecution, ethnic cleansing, war or totalitarian governments.

European citizens arrived in Latin and North America en masse, without visas or conditions imposed on them by the authorities. They were simply welcomed, and continue to be in Latin America. They came to exploit the natural wealth and to transfer it to Europe, with a high cost for the native population. Yet the people, property and rights of the migrants were always respected.

Contrast the European "Return Directive" to be voted on in the European Parliament this week. It imposes harsh terms for detention and deportation of undocumented immigrants, regardless of the time they have spent in European countries, their work situation, their family ties or their achievements in integrating themselves into local society.

The EU is now the main destination for migrants around the world, because of its positive image of space, prosperity and public freedom. The great majority of migrants contribute to, rather than exploit, this prosperity.

They are employed in public works, construction, cleaning, hospitals and domestic work. They take the jobs that Europeans cannot or will not do. Maintaining the relationship between the employed and the retired by providing generous income to the social security system, the migrant offers a solution to demographic and financial problems in the EU.

For us, our emigrants represent help in development that Europeans do not give us (few countries reach the minimum objective of 0.7% of GDP in development assistance). Latin America received, in 2006, a total of $68bn sent back from abroad, more than the total foreign investment in out countries. My country, Bolivia, received more than 10% of its GDP in such remittances.

Unfortunately, the return directive is a huge infringement of the human rights of our Latin American friends. It proposes jailing undocumented immigrants for up to 18 months before their expulsion. Mothers with children could be arrested, without regard to family and school, and put in detention centres, where we know depression, hunger strikes and suicides happen. How can we accept it?

At the same time, the EU is trying to convince the Andean Community of Nations (Bolivia, Colombia, Ecuador and Peru) to sign an "association agreement" that includes a free trade agreement of a similar nature to that imposed by the US. We are under intense pressure to accept demands for liberalisation of our trade, financial services, intellectual property rights and public works. Under so-called "judicial protection" we are being pressured to denationalise water, gas and telecommunications. Where is the "judicial protection" for our people seeking new horizons in Europe?
If the return directive becomes law, we will not be morally able to deepen negotiations with the EU, and we reserve the right to legislate so European citizens have the same obligations for visas that Europe imposes on the Bolivians, according to the diplomatic principle of reciprocity.
The social cohesion problems that Europe is suffering now are not the fault of migrants, but the result of the model of development imposed by the north, which destroys the planet and dismembers human societies. I appeal to European leaders to drop this directive and instead form a migration policy that respects human rights, and allows us to maintain the movement of people that helps both continents.
· Evo Morales Ayma is the president of the Republic of Bolivia

Critique of Morales article
Morales writes from the perspective of the indigenous peasant and is keen to press the historical context of the exploitation of South American resources. Bolivian Silver funded the Spanish economy over the generations while Spanish arms forced African slaves and indigenous people to mine the minerals. It is only in recent times that Bolivians and other South Americans had the means and permission to migrate to Europe.

Threat to reciprocate
Implicit in Morales’s article is a threat to reciprocate with measures against EU nationals migrating to Bolivia. This may have an impact on professionals working for transnational corporations employed in the gas and other businesses. But there is no movement within Europe to migrate to Bolivia or elsewhere in South America. Given the desire in Bolivia to maximise its tourist income, a threat to introduce a reciprocal arrangement is unlike to have any significant impact in reality.

Contrast remittances with aid
A motivation for the article would seem to be the economic input into Bolivia of remittances sent by its emigrant population. Morales quotes a round figure of 10& of GDP – a huge proportion of national income – but it is unclear how much of that comes from Europe. The figure may be accurate but it is certain that large amounts of the remittances received would come from Bolivians who have migrated to other South and North American countries, including the US.

The point about EU nations not reaching the UN target of 0.7% of GDP to be allocated to foreign aid is well made. Much of that aid goes to Africa and Asia as well as South America. Given the noises at recent G8 summits about abolishing historical debt and reaching the 0.7% aid target, there must be frustration at the tardiness in reaching what was a modest target. But as the global economy approaches recession due to the oil, climate change and credit crises, it is unlikely that the foreign aid target will continue to be a financial priority for EU governments.

Certainly in Ireland the Government must turn its attention to dealing with domestic economic difficulties. Unemployment figures for May 2008 show a record year on year rise in unemployment of over 48,000 people to a total of 200,000. This represents close to a one third increase. It demonstrates the early stage of the “bust” following the “boom” – construction had dramatically slowed, as has high street spending. The Irish Government’s National Development Plan will have to be dramatically revised as it was predicated on economic growth of 4.5% per annum over its 6-year term. That’s just not going to happen and there will be cutbacks. In that context it is unlikely that the 0.7% aid target could be met.

Context of “association agreement”
Morales draws attention to the “association agreement” currently under discussion between the EU and the Andean nations. EU – LAC (Latin American Confederation) summits and contacts are ongoing. Given the context of the G8, WTO and NAFTA agreements it is not surprising that the EU would want a detailed Free Trade agreement with South American countries. But Morales was elected on a platform of nationalisation of his country’s natural resources including water and gas. His enactment of those policies on a “we want partners, not bosses” basis is certain to prompt a reaction by transnational corporations and their political and bureaucratic allies. It remains to be seen how Bolivia could resist WTO rules or such an “association agreement” no matter how strong his domestic mandate.



What is the “Return Directive”?
The Return Directive is a policy to harmonise illegal immigration policy throughout the EU. It allows for the “return” of illegal immigrants to their home countries.

It comprises part of a three-pronged strategy to deal with migration into the EU. A Directive to introduce a “Blue card” system along the lines of the US “Green Card” system is in development. This would allow limited migration of skilled workers into the EU. The third measure would penalise employers of illegal immigrants to discourage their integration into the workforce and society.

On June 18th, the EU Council of Ministers announced details of the Return Directive following its adoption by the European Parliament. They propose a maximum 18 month detention period for illegal immigrants. At present Spain has a 40 day maximum and Hungary has a 1 year maximum.

Legal basis for Return Directive
The Amsterdam Treaty of 1998 provides a legal basis for the EU to introduce a common policy on immigration, an initiative that was discussed at the Seville Council in 2002. Heads of State recognised at that time that immigration into and EU without borders was an international issue that could best be addressed by a pan European response.

Tampere Programme
In October 1999 under the “Tampere Programme” (the workplan to implement Amsterdam Treaty’s asylum and migration positions) the Common European Asylum System (CEAS) was established. It set out to improve migration management with respect to the fair treatment of third country nationals and regard to a partnership approach with the countries of origin of those persons migrating to the EU.

It contained the following measures: ‘The EU needs a comprehensive approach to migration addressing political, human rights and development issues and countries and regions of origin and transit. The European Council calls for assistance to countries of origin and transit to be developed in order to promote voluntary return. The European Council invites the Council (of Ministers) to conclude readmission agreements between the European Community and relevant third countries or groups of countries.”

By the Nice and Laken summits (2000/01) the emphasis turned to addressing irregular migration. The return of asylum seekers whose claim is rejected has become a core element of a coherent EU asylum policy. The Asylum Procedures Directive included a provision on “manifestly unfounded asylum claims” which enables member states to accelerate the asylum procedure. A European Refugee Fund was established to assist with the voluntary return of illegal immigrants.

Hague Programme and immigration
By 2004 the EU had adopted the “Hague Programme”, effectively its workplan for 2005 – 2009. Its introduction states that: “International migration will continue. A comprehensive approach, involving all stages of migration, with respect to the root causes of migration, entry and admission policies and integration and return policies is needed.”

The Hague programme goes on to assert that: “Migrants who do not or no longer have the right to stay legally in the EU must return on a voluntary or, if necessary, compulsory basis. The European Council calls for the establishment of an effective removal and repatriation policy based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity.”

Process of agreeing the Return Directive
The Slovenian Interior Minister Dragutin Mate chaired the negotiations on the Return Directive. On June 18th Mate stated that the Slovenian Presidency had concluded a very important instrument, one that takes into full account the respect for human rights and the fundamental freedoms of all concerned. The Directive provides for common standards and return procedures as well as clear, transparent and fair common rules dealing with third country nationals who illegally stay in member States.

The process began in 2005 and is the first example of an EU directive relating to immigration to be finalised under the new co-decision procedures. This involves increased discussion and co-ordination between the three main EU legislating bodies – the Council of Ministers, the EU Commission and the European Parliament. On June 18th the European Parliament agreed the final negotiated text with the exception of the provision of free legal aid for alleged illegal immigrants. Free legal aid is now to be incorporated under the provisions of the proposed Asylum Procedures Directive. How that will impact on the affected persons remains to be seen, but it could be that a person would be able to avail of free legal aid during the process of seeking asylum but if such an asylum application were denied, the person would be subsequently denied free legal aid when challenging detention or expatriation as an illegal immigrant.

UNHCR concerns
However the United Nations high Commission for Refugees (UNHCR) has expressed concerns about the Directive. In a media release on June 17th 2008, the UNHCR claimed the Directive does not incorporate all the safeguards necessary to ensure that returns take place in safety and dignity. Necessary safeguards to ensure that removals are not made contrary to international refugee law and other fundamental rights are absent.

“Although member states have the option to adopt or maintain higher standards, INHCR remains concerned that standards on removals are likely to drop as a consequence of this text.”

The media release went on to welcome references in the Directive to the principles of refoulment – protecting refugees from being returned to their own country – but expressed concern that refoulment could still exist in practice. Thereby the question is raised – if illegal immigrants are “returned” and refoulment is respected – where would illegal immigrants be returned/removed to?

The UNHCR statement on the Directive recognises that it allowed member states to exclude any persons apprehended during the illegal crossing of an external border and who had not subsequently obtained authorisation to stay. This would indicate that the protections contained in the Directive would only apply to immigrants who entered the EU legally. But due to visa and other entry restrictions, many persons seeking to enter the EU were compelled to do so illegally, according to the UNHCR.



Irish Human Rights Commission position
On April 2nd 2008, State Broadcaster RTE reported on a presentation by the Irish Human Rights Commission and the UN High Commission for Refugees to an Oireachtas (Parliamentary) Committee. IHRC Commissioner Michael Farrell was reported as stating that detention of asylum seekers should be a position of last resort and that there should be a short time limit detention at the point of entry.

Due to the lack of a proper immigration policy, the standard procedure for non EU would-be migrants into Ireland is to claim asylum, whether they have a basis for asylum or not. Ireland has recently reformed its procedures for dealing with asylum seekers to prioritise swift decision-making on individual cases. The government aspire to dealing with applications within 6 weeks. This contrasts with the previous experiences where it took years for cases to be ruled on. Frequently asylum seekers had integrated into the community or established strong bonds in the years between application and decision. Some married EU citizens or had children enrolled in schools before their cases could be heard, an unsatisfactory situation that facilitated many claims for settlement on humanitarian grounds, regardless of the merits of the asylum claim itself.

A long-standing critique of EU immigration policy is that no legal mechanism existed. Thousands have sought asylum in Europe, many have been granted refugee status while others were deported or disappeared themselves into the black economy and became illegal. The initiative to provide for a “Blue Card” scheme is therefore to be applauded, but it is unlikely to affect most of the illegal immigrants currently in the EU or to deter others from making the journey. As Morales writes, the EU is a choice destination because of its “positive image of space, prosperity and public freedom”.

Internal EU migration
There is much migration within the EU itself. Ireland has welcomed an influx of workers from Poland, Latvia, Lithuania and elsewhere as those nations acceded to EU membership in 2004. Ireland, Sweden and the UK did not impose restrictions on inward migration from the EU at that time, as did the other EU nations. Those 3 nations thereby granted accession state nationals access to their labour markets. Ireland insisted on introducing a policy of denying social welfare and other benefits to accession state nationals until they had been present in the country for 2 years. In May 2006 Spain, Finland, Greece and Portugal removed their barriers on workers from the accession states.

Ireland does not have a colonising history and has not had the waves of former colonial migrants that Spain, France, Netherlands, UK and others have experienced. With such a large internal migration phenomenon balancing the supply and demand for labour within the EU, the need for migration from outside the EU diminishes. Correspondingly, it becomes more difficult for non-EU migrants to receive an official welcome, or to sustain legal residence and integrate into society. It may well be that the Return Directive and its proposed sister Directives will firmly close the door for most of the people of the world to enter fortress Europe.

Key issues remaining in Ireland in relation to immigration include family reunifications and access to long-term residency. It is worth noting in the context of an article referring to Bolivian President Evo Morales's comments on the EU Return Directive that Ireland is not a priority migration destination for Bolivian nationals, who are more likely to migrate to Spain or other southern European States.

Ireland immigration opt outs
Under the Amsterdam Treaty Ireland negotiated various opt outs in the area of immigration. Chief amongst these was to opt out of the Shengen arrangement. Shengen effectively removed borders between the accession States and the existing EU members, and between the accession States themselves. Ireland’s position on Shengen was based on a pragmatic reaction to the UK’s decision to opt out of Shengen. The UK insisted on retaining its own border controls. If the UK opted out and Ireland opted in, then Ireland would have had to introduce passport controls along its border with the UK, Northern Ireland. This would have been impossible in the context of increased co-operation following the Good Friday agreement and the long standing Common Travel Area between the UK and Ireland, which in itself predates the EU.

Ireland has also opted out of the Long Term Residency Directive. This was agreed in November 2003 with a transposition target date of January 2006. The Directive provides for third country (i.e. non EU) nationals who have been legally resident in the EU for 5 years to obtain legal residential status. Ireland, UK and Denmark opted out of this Directive, as was their rights under Amsterdam.

Ireland vs Bolivia – natural gas
Ireland is thousands of miles away from Bolivia. Both nations share a green shirt for their soccer teams and a history of colonialisation, emigration and exploitation of natural resources. But Ireland has recently accepted the free market globalisation paradigm and positioned itself as a net beneficiary of that system. Bolivia was incorporated into that system also but many of the workers and indigenous people remained exploited in extreme poverty.

The Bolivian electorate have elected an indigenous President on a platform of redistributing wealth and promoting the well being of its citizens. While visiting the UN in New York in 2007, Morales was able to cite an increase in income from natural gas following a renegotiation of trade terms with the transnational energy corporations that supply the expertise, organisation and markets for the Bolivian resource. In 2005, under the previous administration, Bolivia earned $300 million from its hydrocarbons industry. In 2007, post nationalization, the Bolivian exchequer received $1.93 billion.

Contrast the Bolivian policy with the Irish Government’s approach to the same resource. In 1997 the Irish Government licensed the exploitation of the Corrib Gas field to a transnational syndicate led by Royal Dutch Shell. They did not levy a charge on the license nor did the Irish State retain a percentage share in the venture. In effect the State handed over the wealth of the resource to the transnational corporations. A massive protest ensued and continues, mostly focused on the concerns of residents in remote Mayo in the North West about disruption to their property and potential dangers and risks associated with on shore refinement and piping of the gas. There was never any sense that the Irish would nationalise the resource or take even a small share in the profits. This is a good example of the extent that official Ireland has become globalised – a good corporate citizen, unlike Morales’s Bolivia.

Illegal Irish in the US
A campaign has long been underway in the US to grant residency rights to Irish illegal immigrants. Indeed, former Taoiseach (Prime Minister) Bertie Ahern made a point of referring to the issue when he addressed the Joint Houses of Congress in Washington earlier this year. He spoke of the special relationship between Ireland and the US and asked legislators to do something for the 50,000 or so illegal Irish.

Many of those have been in the US for 20 years or more, though shorter stays predominate. Before the restrictions imposed after 9/11 it was relatively easy to obtain a social security number and find employment. But things have changed in the US and the Irish media is intermittently ployed with tales of Irish illegals who can’t come home for weddings, funerals and holidays. If they were to come home, they would not be able to return to the US, forsaking career, assets and resources.

A broad swathe of sympathy exists for these exiles in Ireland. But Ireland’s domestic policy towards illegal immigrants, and prevailing attitudes, demonstrate that the sympathy is fundamentally based on kinship and not on a principled view of immigration.

Ireland, like Bolivia, was once grateful for the degree of remittances sent home by its migrants. Cash would come, as would clothes and Christmas presents, sent home by hard working migrants in America, Britain or elsewhere. This is no longer a significant contribution to the Irish economy but there are many communities in Nigeria, Latvia and Romania who are grateful for remittances received from family in Ireland.

Some Irish people can avail of weekend flights to New York for shopping and entertainment or the chance to connect with illegal family members and friends in the US. In developing nations such as Bolivia, such a luxury is unfathomable.

Conclusion
The EU has now agreed the Return Directive. It will be up to the individual member states to transpose it into national law and practice. The UNHCR and President Evo Morales of Bolivia are amongst those who have drawn attention to it and articulated a critique of it. The EU will tighten its immigration policies and procedures and Morales will continue his policies of reform. It remains to be seen how the proposed “Association agreement” between the EU and South American nations impact on the well being of his citizens.