Estratto da un articolo pubblicato in collaborazione con la Dott.sa Jessica Guth, la seguente riflessione ha l’intento di prendere in considerazione il framework legale dell’Unione Europea, che si occupa espressamente di immigrazione illegale da paesi terzi.
Il testo è in Inglese, data la collaborazione di carattere internazionale da cui ha avuto origine.
Irregular Migration in the EU: The Legal Response
Over the last decade or so the EU has launched a series of legal provisions andpolicy documents containing the guidelines, objectives and legal instrumentswith which to operate in the fight against illegal immigration from thirdcountries.
The key aim seems to be to combat the aiding and abetting andexploitation of illegal immigration by criminal gangs through the trafficking of human beings and to disincentivise the use of irregular migrants as a cheap-labour force. Some efforts have also been made to address the issues which actas ‘push factors’ in the countries of origin so as to reduce irregular migrationflows and to strengthen border controls and migration management processes.
It is of course true that the EU does not have competence to legislate on externalborder control. Member States remain responsible for the monitoring andsurveillance of their external borders as well as for setting their own immigrationpolicies vis-à-vis third country nationals.
That is not to say that the EU has norole to play or no influence in this area. EU policy in the field of external bordersof the European Union is focused on supporting Member States in themanagement of border controls and ensuring a high and uniform level of control on persons and surveillance, as a prerequisite for creating a space of freedom,security and justice.
To help achieve that aim it created the European Agencyfor the Management of Operational Cooperation at the External Borders of theMember States of the European Union “FRONTEX”. In legal terms the field of border control is governed by the Schengen Borders Code. which defines rulesfor crossing the external borders and internal border controls. It applies to anyperson crossing any borders of a Member State. External border controls for EUcitizens or other persons enjoying the right of free movement within the EU arevery simple and fast, relying on straightforward checks of personal identificationcards. Non-EU citizens are subject to thorough checks relating to verifyingidentity, conditions of entry and where necessary residence permits and otherrelevant documentation.
In 2009 the EU created the Visa Code which regulatesthe conditions and procedures for issuing visas for short stays and transitthrough Member States and associated States which apply the Schengen
acquis. It requires nationals of third countries to be in possession of visas when crossingthe external borders of the EU, and for some countries to be in possession of anairport transit visa for passage through the international transit areas of airportsof Member States.
A further development to consider is the European Border Surveillance System“EUROSUR” established in 2011 with the aim of becoming operational by theend of 2013. It will establish a mechanism that will enable Member States’authorities responsible for border surveillance to share operational informationand cooperate among themselves and with the Agency in order to reduce loss of life at sea and the number of irregular migrants entering EU illegally, andenhancing security by preventing cross-border crimes such as trafficking inhuman beings and drug trafficking. The initiatives in relation to border controlare focused on stopping anyone who does not fulfil specific criteria from enteringinto the EU.
Another important area to consider in relation to irregular immigration is the EU’sfight against human trafficking. The Council action plan on trafficking in human beings, and the Commission Policy Plan on legal immigration are examples of developing coordination and cooperation mechanisms and developing guidelinesfor data collection in order to better understand this area. Through itsdevelopment policy the Commission stated that they have to continue fundingmeasures addressing the factors that make some people vulnerable totrafficking, such as poverty, discrimination and lack of access to basic and highereducation. The 2002 framework decision set out legal provisions to combat trafficking.