MIME-Version: 1.0 Content-Location: file:///C:/5C635EC1/ARTICLE63a.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" [ARTICLE 63a]

HUMAN TRAFFICKING:

EU EXTENDS FURTHER CONTROL OVER COMMON IMMIGRATION POLICY=

TO WHICH THE = UK WILL BECOME SUBJECT

 [ARTICLE 63a]

 

 

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area: Treaty on the Functioning of the European Union, Part Three Policies and Internal Actions of the Union, Titl= e IV – Area of Freedom, security and Justice, Chapter 2 – Policies on border checks, asylum and immigration, Article 63a

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Lisb= on Treaty: =

“= ;65) Article 63a shall replace = points 3 and 4 of Article 63.

ARTICLE 63a

1. The Union shall develop a common immigration policy a= imed at ensuring, at all stages, the efficient management of migration flows, fa= ir treatment of third-country nationals residing legally in Member States, and= the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

2. For the purposes of paragraph 1, the European Parliam= ent and the Council, acting in accordance with the ordinary legislative procedu= re, shall adopt measures in the following areas:

(a) the conditions of entry and residence, and standards= on the issue by Member States of long-term visas and residence permits, includ= ing those for the purpose of family reunification;

(b) the definition of the rights of third-country nation= als residing legally in a Mem= ber State, including the conditions governing freedom of movement and of residence in other Member States;

(c) illegal immigration and unautho= rised residence, including removal and repatriation of persons residing without <= span class=3DSpellE>authorisation;

(d) combating trafficking in persons, in particular women and children.

3. The Union may conc= lude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer= fulfil the conditions for entry, presence or residenc= e in the territory of one of the Member States.

4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures = to provide incentives and support for the action of Member States with a view = to promoting the integration of third-country nationals residing legally in th= eir territories, excluding any harmonisation of the= laws and regulations of the Member States.

5. This Article shall not affect the right of Member Sta= tes to determine volumes of admission of third-country nationals coming from th= ird countries to their territory in order to seek work, whether employed or self-employed.”

 

Consolidated Treaty Article(s):

“Article 63<= /span>

The Council, acting in accord= ance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

3. measures on immigration po= licy within the following areas:

(a) conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion,

(b) illegal immigration and illegal residence, including repatriation of illegal residents;<= /span>

4. measures defining the righ= ts and conditions under which nationals of third countries who are legally resident in a Member State may reside in= other Member States.

Measures adopted by the Counc= il pursuant to points 3 and 4 shall not prevent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.

Measures to be adopted pursua= nt to points 2(b), 3(a) and 4 shall not be subject to the five-year period referred to above.”

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Expl= anation:

The different EU leaders set out the basis for a common EU immigration policy at the 1999 Tampere European Council, aiming to better manage migration flows = by developing a common European immigration system. At <= st1:place w:st=3D"on">Tampere, three elements required for an EU immigration policy were agreed: a comprehensive approach to the management = of migratory flows, it would include fair treatment for third-country national= s and development of partnerships with the countries of origin.=

 

The Thessaloniki European Council July 2003 stressed even further “the ne= ed to explore legal means for third country nationals to migrate to the Union, taking into account the reception capacities= of the Member States.” This was confirmed by the Hague programme which establishes the EU objectives for strengthening freedom, security and justi= ce for the period 2005-2010. The European Commission is confident in ensuring = the development of this policy by making several proposals, some of which has a= lready become EU legislation. Lisbon must be stop= ped before the very freedom, security and justice of the UK citizens falls under the g= overnance of a European Union with its destructive immigration policies.  

 

The Lisbon Treaty provides a definite legal basis for the development of a comprehensive common immigration policy. The Lisbon Treaty confirms the EU commitment= to the development of a common immigration policy. The new Article 63a is base= d on the existing Article 63 (3) (a) (b) (4) which expands it only in so far as = it provides for single measures on immigration policy. Under the new Article 63A “= ;The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the preventi= on of, and enhanced measures to combat, illegal immigration and trafficking in human beings.”

 

This provision introduces the term &#= 8220;efficient management of migration flows” which has now been used in Commission’s communications and European Council conclusions. Whereas there are Commission communications, Council conclusions and action plans <= span style=3D'mso-bidi-font-weight:bold'>on the EU fight against illegal immigra= tion and trafficking in human beings, there is also a Council Framework Decision= on combating trafficking in human beings which,= the Lisbon Treaty provides a clear legal base for these measures. It refers “enhanced measures to combat, illegal immigration and trafficking in human beings.” Although it is not clear what is meant by “enhan= ced measures”, the underlying federalist ambitions will mean that it will lead to stricter control measures than the current Article 63 (3) (b) on th= e repatriation of illegal residents.

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Presently, measures concerning illegal immigration are decided by QMV at the Council a= nd through the co-decision procedure. However legal migration has been governe= d by unanimity in the Council through the consultation procedure so the European Parliament has a limited role in concerns over legal migration. Under the Lisbon Treaty, however, all common policy immigration measures will be deci= ded together by the European Parliament and the Council through the ordinary legislative procedure (co-decision procedure) and by QMV in the Council. The Lisbon Treaty abolishes the veto over legal migration hence the UK will= have to accept a reduced influence in the adoption of measures concerning legal migration and it will not be able to block legislation.

 

The UK has an opt out from the ar= ea of freedom, security and justice and it can decide to opt in to measures on illegal immigration or on legal immigration. According to a new Article 4a inserted= in the Protocol on the position of t= he United Kingdom and Ireland, the UK is not bound by measures amending existi= ng measures (on which it is already bound) but if the Council determines that the non-participation of the United Kingdom in t= he amended version of that existing measure makes the application of that meas= ure inoperable for other Member States. it may urge the UK to participate. If t= he UK decides not to participate the existing measure is no longer biding upon it= and it will bear the direct financial consequences. <= span lang=3DEN-GB style=3D'font-size:11.0pt;font-family:Arial;color:black;mso-an= si-language: EN-GB;mso-bidi-font-weight:bold'>Therefore, the UK might be forced to partici= pate.

 

The UK will be subject to enhanced EU controls over illegal immigration. The UK has = opted into measures on illegal immigration such as the Council Directive <= span style=3D'font-size:11.0pt;font-family:Arial;color:black;mso-bidi-font-weigh= t: bold'>defining the facilitation of unauthorised entry, transit and residence. <= span style=3D'font-size:11.0pt;font-family:Arial;color:black;mso-bidi-font-style= :italic'>The Lisbon Treaty enhances and expands EU action in this field.

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The new Article 63 (2) (a) is the same as Article 63 (a) TEC, in that it allows the Union to adopt measures concerning the conditions of entry and residence, a= nd standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification. It should be note= d that the European Commission has recently proposed a Council Directive on a sing= le application procedure for a single permit for third-country nationals to re= side and work in the territory of a Member State and on a common set of rights for third-c= ountry workers legally residing in a Member State. The Draft Directive aims to grant socio-economic rights to third country-workers on e= qual terms with the Member States own nationals. The proposal’s main objec= tive is to ensure equal treatment to third country workers who reside legally in= a Member State. It is currently being discussed. Whereas, under existing conditions, such measures are adopted by unanimity = in the Council and through the consultation procedure under the Lisbon Treaty, they will be adopted by QMV in the Council and through the ordinary legisla= tive procedure enhancing the influential role of the European Parliament. The new Article 63 (2) (b) provides for measures defining “the rights = of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States” which is similar to Article 63 (4) TEC. However, the EU competences are broader.

 

The new Article’s guarantee of rights is not limited to the definition of the right of residence of legally resident third country nationals. The UK will have to now take into account that the Union common immigration policy aims to ensure “fair treatment of third-country nationals residing legally in Member States.R= 21; Moreover, the new clause provides for the adoption of EU legislation defini= ng the rights of legally resident third country nationals comprising (but not = limited to) “the conditions governing freedom of movement and of residence in other Member States.” The European Commission has also recently propo= sed a Council Directive on the conditions of entry and residence of third-count= ry nationals for the purposes of highly qualified employment. The Draft Direct= ive aims to harmonise the admission conditions of e= ntry and residence of this category of workers. It also lays down the conditions under which a third-country national may reside in a second Member State. Such proposals are subject to unanimity in the Council.  This is currently being discussed.=

 

The Lisbon Treaty will also allow for= decisions – concerning the rights of third country nationals, including the rig= ht to social security, residing legally in a Member= State who then travel to another= Member State – to be adopted by QMV through the co-decision procedure. Therefore, = the UK will not be able to veto such proposals and it will have a limited influenc= e in the adoption of such important measures.

 

The new Article 63a(2)(c) concerns illegal immigration and unauthorised residence, measures “including rem= oval and repatriation of persons residing without authorization.” It is of= no coincidence then that a Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals is currently being discussed. Moreover, the fight against illegal immigration implies the possibility of criminal sanctions. = The European Commi= ssion has also recently presented a proposal for a Directive, providing for common sanctions and measures against employers of third country nationals who are illegally staying on the territory of the Member States based on existing Article 63 (3) (b). The Lisbon Treaty also introduces a new legal base, Art= icle 63a (2) (d), for measures “comba= ting trafficking in persons, in particular women and children.”

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The Lisbon Treaty provides for a new legal basis [Article 63a(3)] for the Union to conclude readmission agreements with third countries. This new clause provides that “The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer= fulfil the conditions for entry, presence or residenc= e in the territory of one of the Member States.” The Council has already b= een authorising the Commission to negotiate readmission agreements with several third countries under the existing Article 63 (3) (= b), concerning measures on illegal immigration and repatriation of illegal residents. Some of these agreements have already entered into force. They l= ay down the obligation to readmit nationals of the country with which the EU h= ave signed the agreement. The Lisbon Treaty will enhance the Union’s competence to negotiate such agreements on behalf of the Member States.

 

The UK Government must be made aware = that Lisbon = pushes forward the boundaries in providing incentives and support for the action of Member States with the aim to promoting the integration of third-country nationals within their boundaries. The Commission has been adopting Communications on integration of third country nationals, such as, for exam= ple in September 2005, the Commission adopted the Communication, A Common Agenda for Integration, Framework for the integration of t= hird country nationals in the European Union. The Justice and Home Affairs Council in June 2007 adopted conclusions on the strengthening of integration policies in the EU. They represented a new step in steering the EU integration agenda assessing the = need for further action. The Lisbon Treaty introduces a new EU competence in Article 63(a)(4) to “provi= de incentives and support for the action of Member States” with the aim = to “promote the integration of third-country nationals residing legally = in their territories.” Such incentive and supporting measures for the integration of third country nationals will be established by the Council acting by QMV together with the European Parliament through the ordinary legislative procedure (co-decision procedure). The provision states that “any harmonization of the laws and regulations of the Member States” is excluded. Nevertheless, it will represent a significant in= terference with Member State’s integration policies. Moreover, it is probable that “incentives and support action” w= ill be considered as an open door to harmonisation.

 

There is no clause for this Article a= s the existing Article 63 (4) already confirms that “Measures adopted by the Council pursuant to points 3  and 4 (measures on legal and illeg= al immigration) shall not prevent any Member State from maintaining or introdu= cing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.” The Lisbon Treaty, Article= 63a (5), solely refers to the right of the Member States to “deter= mine the volumes of admission of third country nationals coming from third count= ries to their territory in order to seek work, whether employed or self-employed= .” Nevertheless, there is already an access to the labour market by third-country nationals residing in = a Member State and such movement will not be prevented. Therefore, one may conclude that Member States are not entitled to introduce national measures= and false assurances in this Treaty that national provisions in immigration will take primacy over EU law are not workable. Even if the right over immigrati= on is retained, it will be reduced extensively. The national laws of the respecti= ve Member States will be further harmonised into a binding common immigration policy, which is not in Britain’s interest. =