Title: Citizenship in America and Europe: Beyond the Nation-State?
Author: Michael S. Greve and Michael Zoller
Publish Date: 2009
Publisher / Edition: AEI Press, 2009

The collapse of the Soviet Union transformed the political landscape of the West no less profoundly than it did that east of the former Iron Curtain. Long moribund but virulent nationalisms were quickly aroused in the Balkans, as were equally intense tribal rivalries in several of the Soviet Union’s former client states in sub-Saharan Africa. Ensuing civil war and violent conflict led a large exodus of refugees from these troubled regions to seek asylum in the West, along with many economic migrants, whose numbers were swollen by the large international population flows that attended the sudden global expansion of capitalism also triggered by the Soviet Union’s collapse. In Europe’s case, foreign immigration was further augmented by the opportunity the Soviet Union’s collapse presented Germany to reunify and many of the Soviet Union’s former satellite states in East Europe to join the European Union.

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The Directive in question is the robustly named ‘EU Directive on Access to a Lawyer in Criminal Proceedings and on the Right to Communicate upon Arrest’. Under its proposed terms, any person suspected of criminal activity in a member state would automatically have the right to legal representation during interrogation by the authorities. In addition, they would be entitled to have a legal professional assess the conditions in which they are being held.

Justice Minister Jonathan Djanogly justified the decision by arguing that the directive “would have an adverse effect on our ability to investigate and prosecute offences effectively”, and emphasised the “considerable concerns about the details of the directive and the impact its drafting would have on the UK’s criminal justice systems”.

However, given the nature of these reservations, the decision to opt out seems somewhat illogical. Although the minister emphasised that the UK has not ruled out opting in at a later stage, by withdrawing from the process now, the UK has excluded itself from all negotiations that will eventually determine the detail of the final text. Moreover, this approach undermines the Government’s professed strategy of using the negotiating power concomitant with membership to reform the EU from within. As Jodie Blackstock of Justice has stated: “The possible reasons to opt out simply do not stand up to scrutiny.”

By opting out of the Directive, the Government could deny UK citizens arrested abroad the protection of fundamental rights that they have come to expect in Britain. Head of policy at Fair Trials International, Catherine Heard, denounced the decision as increasing the risk of “further cases of injustice”, highlighting that “a third of our clients facing charges in other EU countries complain about poor access to legal advice”. The now well-known case of Andrew Symeou is a paradigm account of the excesses of the European Arrest Warrant, which compels the UK to fast-track British citizens for extradition, with minimal safeguards or legal recourse and no questions asked.

While the UK is paralysed in its efforts to bring its own citizens back home, it is also paradoxically shackled in its attempts to deport known offenders. The announcement of the opt out comes as new figures reveal that the number of EU citizens convicted of criminal offences in the UK has trebled over the last four years, soaring from 10,736 in 2007 to 27,563 in 2010. Based on results for the first seven months of 2011, more than 33,000 convictions are expected this year – some 100 convictions every day.

An EU citizen will not face deportation after conviction unless they receive a custodial sentence of more than two years. In addition, a probation service memo from 2007 highlighted that a new EU Directive could restrict this even further, permitting deportation only where offenders pose a “present, genuine and sufficiently serious threat” to society. Last year, just 1,480 EU citizens were deported from the UK, and it is unclear how many of these were removed as a result of a criminal conviction.

Moreover, the Government now risks eroding legal rights in the UK, as the Legal Aid, Sentencing and Punishment of Offenders Bill could remove the longstanding guarantee of face-to-face legal advice in a police station on arrest. The new regime could introduce automatic means testing, denying some people the right to have a lawyer present during police interviews, although the Bill does extend the provision of remote advice.

If the Government is to realise its commitment to fortifying basic fair trial safeguards at home and abroad, it should aim to improve general practice in Europe by exporting the traditionally exemplary standards of justice in the UK; it should not surrender its ability to influence the direction of important criminal justice policy at the EU level. Establishing minimum guarantees of legal representation throughout the EU-27 benefits not only EU citizens in this country, but UK citizens abroad. Opting out of the Access to a Lawyer Directive not only removes the UK from the negotiating table, but signals the country’s disapproval of the scheme. Given our knowledge of the catastrophes that ensue when legal safeguards are lacking, this is a position we would be unwise to take.

Small Corroding Words, by Jon Gower Davies, is a systematic critique of the philosophy, research and practice of the EHRC. It reveals serious flaws in the EHRC’s ‘triennial review’, How Fair Is Britain?, that was used to demonstrate unfairness in Britain. What the research actually shows are the statistical differences between some groups. This line of thinking entails, for example, taking the fact that men are more likely to die in work-related accidents than women as a sign of unfairness. (pp. 8-9) The EHRC inaccurately blames Britain for differences of this kind.

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The report identifies five ‘hubs’ of concentrated criminal activity within the EU, of which the ‘South East’ (Bulgaria, Romania and Greece) comes under the most scathing criticism. Given the “significant increase in illegal immigration via Greece”, as well as “increased trafficking via the Black Sea”, this region “has seen the greatest expansion [in crime] in recent years”. In addition, “[t]hese developments have contributed to the formation of a Balkan axis for trafficking to the EU”, running between the Western Balkans and South East Europe, and new transit hubs are appearing in other member states such as Hungary, where Balkan and Black Sea routes converge.

In light of these findings, three areas of EU immigration policy have come under particular scrutiny. Firstly, in relation to illegal immigration, the report concludes that “[t]he South East criminal hub is…under the heaviest pressure”, and “the hub’s centre of gravity for this criminal problem is currently Greece”. Illicit entry across the Turkish-Greek border increased by more than 500% between 2009 and 2010, with the “comparative ease with which entry visas may be obtained” in Turkey being cited as a key factor. Although this porous barrier has long been a hot-spot for those seeking illicit entry into the border-free Schengen zone, the report brands Turkey as “the main nexus point for illegal immigrants on their way to Europe”, suggesting that recent efforts have done little to curb the crisis.

Secondly, the study will inevitably impact Bulgaria and Romania’s bid to join the ranks of the 25 Schengen states. The report stops short of opposing their anticipated accession outright, however asserts unequivocally that the move “may yield increased illicit traffic through these countries and the possible displacement of illegal immigration flows from the Turkish-Greek border”, as well as creating “potential new opportunities for organised crime”. Albanian speaking, Turkish and former Soviet Union groups are expected to be the most likely to exploit this enlarged, passport-free zone.

Finally, the report names the Ukrainian port of Odessa as the centre point of a major Black Sea route used by cocaine and heroin traffickers, and gangs from Ukraine were found to be key players in Europe’s €10 billion black market in cigarettes. The country unilaterally dropped visa requirements for EU citizens six years ago and, in 2010, the European Commission set out an Action Plan of reforms to lead to visa-free travel. However, the report warns that this “regime for Ukraine may itself facilitate trafficking via the Black Sea route”.

Ukraine has been quick to rebut the claims, with its EU ambassador, Kostiantyn Yelisieiev, dismissing the report as “not acceptable”. Though not an EU member state, the country has urged Europol “to revise its statements”, yet has been unable to deny its extensive problem with organised crime.

Despite the obvious implications for EU immigration policy, Europol director Rob Wainwright has refrained from making substantive policy proposals. “We carry out an objective report without political influence,” he stated, “It’s for policymakers to judge how to react.” Once EU interior ministers receive an official copy of the study next month, it will be up to them to adjust current priorities. It must be hoped that they do not allow political wrangling to overshadow such an overwhelming body of intelligence.

This week heralded a new cap on immigration to the UK. The policy should come as a surprise to no one: the ‘numbers game’ has long been a feature of the British debate on immigration. The cap is the highest-profile element of a regulatory package of policies meant to meet the Government’s target of reducing net immigration to the UK to ‘tens rather than hundreds of thousands’. At the moment, Britain is experiencing a net immigration to the UK of around 200,000 per annum alongside soaring youth unemployment rates. This target may therefore seem to make political sense – especially given public concerns about immigration. However, in reality, it is bad policy and a waste of time.

Firstly, the immigration cap only applies to the inflow of non-EU residents. It doesn’t so far apply to non-EU students, or those whose eligibility is based on family ties. In fact, it only applies to labour applications, which by themselves make up only 20% of the non-EU inflow. This in itself only constitutes a small portion of total inflow. These working visas are estimated to account for 5% of net migration (at a generous estimation).

The removal of this particular immigrant demographic will make little difference to the net immigration flow. To get to anywhere near a figure of 40,000, the government would have to target groups such as highly-skilled migrants and students who account for the majority of non-EU migration (60%).

Regardless of concerns as to how these modifications could possibly deliver such a huge reduction, capping the number of non-EU students could have disastrous consequences. Non-EU students pay excruciatingly high university fees, fees that many universities use to subsidise British undergraduates.

It is far from clear that this is what voters want when they say they want stricter controls on immigration. Almost no migration statistic is without some caveat, but public opinions on immigration are particularly unreliable. People may be against migration in theory, but their opinion often wavers depending on how the term ‘immigrant’ is defined. The public tends to be against illegal immigration (which is impossible for any government to cap as it all happens informally anyway). Yet other migrants, such as those staying on after a student visa and those on working visas, do not provoke the same knee-jerk objections. This is because they immediately appear to be contributors and co-operators, rather than ‘undesirable burdens’ unlawfully seeking aid.

The Government’s proposed strategy to reduce immigration to a more sustainable level is, in reality, unlikely to succeed. While the Government should be rightly reticent to bar large swathes of international non-EU students and highly skilled workers from entering the country, to a significant degree, its hands are tied by EU free movement regulations. It seems then that the ‘cap it’ policy is as intangible and impractical as the common mindset of ‘send ‘em back’.

Once over the Greek border, EU Schengen policy means there are no border controls within the EU (except for opt-out countries like the UK). However, current EU policy puts the burden of illegal immigration on the country of entry, with member states returning immigrants to the country they used to cross into the EU. With estimates suggesting that the Greek-Turkey border is responsible for up to 90% of the EU’s illegal immigration, the pressure on Greece, and its already overcrowded immigration resources, is immense.

For this reason, a number of member states, including the UK and the Netherlands, have stopped sending migrants back to Greece, unable to cope with the scale of the backlog. However, Bill Frelick, from Human Rights Watch, has argued that cooperation amongst the member states is badly lacking: “Greece has proven itself completely incapable of handling this problem, and they’ve gotten precious little support from the EU member-states.”

In the announcement to the Athens News Agency on 31 December, Christos Papoutsis, a Greek Interior Minister and former EU Commissioner for Energy, compared the Greek plans to the 4.5 metre metal wall, which runs along 650 miles of the US-Mexico border through Arizona, California, New Mexico and Texas. Although the barrier – fortified by camera and radar surveillance mechanisms, as well as jeep patrols and predator drones – has since gained broad public support, construction costs reached €1.8 billion, and there were initially staunch environmental and humanitarian concerns.

For Papoutsis, building a wall is the necessary answer to the “hard reality” of the country’s immigration problems: “We are absolutely determined on this issue. Greece can’t take it anymore.” Indeed, Jacques Barrot, the former EU Justice Commissioner, has commented that the scale of the problem is such that it represents “a risk to Greek democracy”.

Although a complete timeline for construction has not yet been set, the first stage will likely be a 10 foot high, 8 mile long trial wall near Orestidada, just 2 km from the Evros bank. The stretch is a particularly weak entry point on the border; in 2010 alone, 128,000 migrants passed into Greece, of which 40,000 entered the country via the Evros border, either on inflatable boats or during the summer by foot. The border is increasingly being used by migrants from Asia and Africa, since the EU heightened surveillance at its sea borders and Spain and Italy reached repatriation agreements with African countries, although a large proportion also come from Iraq, Iran, Pakistan and Afghanistan.

The north-eastern town was overwhelmed by a deluge of migrants in October, just days before Frontex, the EU’s Warsaw-based border agency, deployed 175 armed border control specialists to the area. The EU Commission confirmed last month that the presence of these Rapid Intervention Border Teams (Rabit) will be extended until March, having already achieved a 44% reduction in the number of people crossing the border.

The EU Commission has criticised the wall as a “short-term” measure, which will fail to “address and manage the migratory challenges in a more consolidated and structural way”. In a statement in December, EU Home Affairs Commissioner Cecilia Malmstrom urged the Greek authorities, which “are benefiting from European solidarity through a package of financial and practical assistance… to put all necessary measures in place to assist the persons in need”.

Although Papoutsis has stated that the measures are “in no way against Turkey”, the wall could antagonise relations between the EU and Turkey, a long-term EU candidate country.

There is also resistance within Greece itself, from parties across the political spectrum. The national Communist Party has dismissed the “double hypocritical” policy as “barbaric”, “inhuman and ineffective”. Conversely, the rightwing Laos Party has attacked the Socialist government for failing to take decisive action sooner.

Kalliopi Stefanaki, the UNHCR protection officer for Greece, has supported Greece’s right to “enhance security at its borders in any way it sees fit”, however concern remains over the treatment of those who request protection once they have crossed the border.  Greece has long been censured by the UN and Amnesty International for the “inhuman” and “degrading” conditions in its detention centres, and the Commission has committed €9.8 million over the coming six months to improving the camps.

In May 2010, members of the eurozone, together with the IMF (International Monetary Fund), agreed a historic €110 billion bailout to rescue Greece’s ailing economy and prevent its debt crisis from spreading. Now urgent measures are also needed to help Greece develop long-term answers to the EU’s illegal immigration crisis, to avoid an endless stream of hasty short-term solutions.