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In the context of the current EU-Serbia relations, Serbian citizens find the freedom to travel without visas in the Schengen area countries since December 2009 as the most tangible benefit and accomplishment so far.
However, the phenomenon of ‘false asylum seekers’ – Serbian citizens who ask for asylum in the developed European countries so to enjoy benefits provided by the asylum procedure – became a threat to the visa-free regime very soon after the visas were abolished. A sudden sharp increase of the asylum seekers from the Western Balkans that followed the visa liberalisation has forced the EU decision makers to reconsider the conditions under which the third country nationals could travel visa-free in the future. The provision which would allow temporary reintroduction of visas is currently being in the EU legislative procedure.
Potential re-imposition of visas for the Serbians, to result as a consequence of high numbers of asylum applications of its citizens in the EU countries, is one of the rare EU legislative acts with direct and palpable repercussions for the Serbian citizens. It is therefore important to understand how the decision-making process evolves and who the main actors in this respect are. The unfavourable circumstance for Serbia is the fact that despite the measures undertaken in the last three years aimed to tackle this phenomenon, the number of its citizens asking for asylum in the EU countries is still very high. What plays in Serbia’s favour, however, is the fact that the decision-making process takes very long. It is continuously being postponed due to extremely complex legislative procedure and the lack of consensus among the decision makers – the European Parliament (EP) and the member states represented in the Council of the EU.
Why the figures of Serbian citizens asking for asylum are high
Since the abolishment of short-stay visas for the Schengen area countries in December 2009, to date, more than 50 thousand asylum applications were filed by the Serbian citizens in of the EU countries. In 2012 Serbia was ranked third by the number of asylum claims in the EU, while in Germany in the same year, Serbians were at the first place – before Syrians, Afghans and Somalis. The recognition rate of the Serbian citizens – the percentage of those who prove their persecution in Serbia, is less than one percent. This is an expected consequence, given that Serbia was required to fulfil a number of conditions and adopt laws in the area of fundamental rights (Block 4 of the Visa Roadmap) in order to obtain the visa waiver.
The phenomenon of the Western Balkans’ asylum seekers confirms one omnipresent global trend. Namely, according to UNHCR, the last decade has seen a growing disproportion between the numbers of asylum seekers in the developed countries, which are skyrocketing, and the number of persons granted asylum, which is decreasing. Most of the asylum seekers nowadays are not genuine, but in fact are the economic migrants striving for a better life in the developed world, who see the asylum application process as a new window of opportunities. While their asylum applications are being processed, in certain EU countries the asylum seekers are provided with decent accommodation, pocket money, medical care and right to work, which is often combined with working on the ‘black market’. Due to a large number of asylum seekers, many states find it difficult to process all the applications. Such situation puts the genuine asylum applicants in the risk of being sidelined.
In fact, features of the asylum systems of the EU member states significantly influence finding a solution for the ‘fake asylum seekers’ from our region. The first limitation identified is the inexistence of integrated asylum policies of the member states. Namely, EU asylum policies are regulated with directives which list the minimum standards in this field, while the transposition into the national legislation and the actual implementation is left to the member states. In the context of common Schengen area, non-harmonised asylum policies and the existing legal framework cause numerous problems and inconsistencies. For example, the abolishment of border crossings enables the asylum seekers to choose in which country they would file a claim. As a consequence, Germany and the Scandinavian countries, who all have generous asylum policies and strong diaspora communities, receive much greater proportion of asylum seekers than for example new EU countries from central and eastern Europe.
The second important limitation is the lack of differentiated asylum procedures depending on the country of origin of the applicant. The aim of creating differentiated procedures is not to discriminate certain nationals, but to enable fast-track processing of unfounded applications, thus preventing potential abuses. Switzerland, for example, has introduced fast-track procedures for the citizens of the Western Balkan countries in August 2012, while respecting the international procedural standards (right on personal interview; right to legal assistance; right to appeal; non-refoulement principle). This led to a significant decrease of the asylum applications from our region. Shortening the asylum procedures and lifting the benefits would probably produce the same effect in the countries that receive most of the asylum seekers from Serbia, such as Germany and Sweden, who are at the same time the most vocal sponsors of reintroducing visas.
How visas can be re-imposed
The field of Justice and Home Affairs, which among others include visa policy and Schengen acquis, is a common EU policy. That is to say, the Commission’s proposal becomes the law once the legislators – EP and the Council, both give consent, i.e. when there is a simple majority of MEPs in the EP and the qualified majority of votes in the Council. Therefore, none of the member states can impose visas to a third country unilaterally, since visa policy is a common EU policy enacted through a common legislative procedure.
In this concrete case, the Commission has in May 2011 come up with a proposal to amend the existing Regulation which lists the ‘black Schengen’ and ‘white Schengen’ countries – the countries which are required visas to enter the Schengen space, and those who are not. The important provisions for our topic concern the activation of the so-called ‘safeguard/suspension clause’. This clause would enable temporary re-introduction of visas to a third state, inter alia in the situations when one or more countries notice a sudden increase of asylum seekers coming from the countries on the ‘white Schengen list’. The increase should attain 50% or more in the previous six months, compared to the same period in the previous year. After having notified the Commission of the newly occurred situation, the Commission decides within three months whether or not to activate the 6-month suspension of the visa waiver for a third country. This decision is brought in the form of so-called implementing act, i.e. after being voted by a committee composed of member states’ representatives, by a qualified majority vote.
The main objections made by the EP and the Council on the Commission’s proposal concerned the rigid calculation for suspension clause activation. The two institutions have reached an informal agreement over the final formulation of suspension clause in November 2012; however the question of suspension clause was reopened in December 2012 on the ambassadors’ level meeting (COREPER), when certain member states demanded lighter conditions to activate the suspension clause. As a reaction, the EP filed new amendments which would allow this institution to be more involved in the decision making over the activation of the suspension clause. Under the current proposal, EP is left out in this phase, as the implementing act procedure involves only the member states. In this way, a new round of negotiations between the institutions is launched, placing the overall negotiation process on its very early phase.
Who the actors are in the decision-making
When it comes to the EP, the Commission’s proposal is being forwarded to the relevant committees. In this case, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) is responsible for this file, while the Committee on Foreign Relations (AFET) has an advisory role. The Committees deliberate on the file on the three separate sessions. Firstly, the Commission’s proposal is presented to the MEPs. Subsequently, they discuss the file and submit amendments. If there are many amendments filed, they are being rationalised by reaching a deal on the so-called ‘compromise amendments’. After establishing the final number of amendments, they are put on vote on the Committee meeting. Before a final committee vote, AFET delivers its opinion, who has gone through the same aforementioned procedure. LIBE adopted its amendments on the session in April 2013. Finally, the resolution of the Committee is put on vote at the plenary session in Strasbourg. The MEPs in the plenary vote according to the instructions of their political groups. As the Committee composition reflects the representation of the political groups in the EP, the outcome of the plenary vote is highly predictable.
Rapporteur is a key person in the deliberation and voting processes. His role is to follow closely discussions in the committee, to draft a resolution which will be subject to amendments and to streamline and shape the file until it is ready for a final vote. Rapporteur should know in detail the file and the positions of the political groups. He/she should also be the first contact point to the media and interested stakeholders. Another influential figure in the process is the Shadow Rapporteur. The question of appointing a rapporteur is a matter of internal agreement among the political groups and a personal engagement of the MEP.
In parallel to the described procedure in the EP, the file is deliberated in the Council. Relevant Council formation is the Home Affairs Council, composed of the ministers of interior of the member states. They normally meet six times per year. In the meantime, their meetings are prepared by numerous vertical formations, comprised of the officials from the member states. On the lowest level, there are so-called working groups for specific questions: visas, asylum, borders, etc. They normally meet once a week in Brussels. Strategic Committee on Immigration, Borders and Asylum (SCIFA) is the most senior of these groups, which monitors and coordinates their activities. All the meetings are chaired by a representative of a country holding the EU presidency, accompanied by an official from the Commission, whose role is to answer the technical questions. The file which has gone through all the working groups is being forwarded to the so-called Antici group, composed of the associates of the ambassadors – permanent representatives.
Committee of Permanent Representatives (COREPER) is the next instance in hierarchy. It is composed of the ambassadors of permanent representations of the member states in Brussels. Their role is to prepare the meetings of the Ministers and to align the positions to the best extent possible (if they managed to reach a consensus, the item is marked with the letter ‘A’; if they have not, the item is marked with the letter ‘B’). The Ministers of Interior decide on the matter by a qualified majority vote; however, the common practice is to reach a decision by unanimous vote.
The legislative process in the two institutions normally takes few months, but in this particular case, it will last more than two and half years. It is in the interest of the legislators – the EP and the Council – to adopt the act in the first reading, which is why in the meantime they hold a number of informal meetings. The so-called trialogues, represented by the officials of the three institutions, its secretariats and legal services, are made so that the legislators can find a compromising position. Bearing in mind the evolution of the decision-making process to date, it seems almost certain that the act will not be adopted in the first reading.
How to prevent the visa-free ban
Notwithstanding the final formulation of the suspension clause, it is clear that Serbia will fulfil conditions for lifting visa-free regime unless the asylum statistics change. The favourable circumstance is the constant adjournment of a final decision due to the legislators’ diverging positions, as well as the fact that the EP, which has so far proven to be the major promoter and sponsor of visa liberalisation, is currently negotiating to be more included in the final decision on the suspension clause activation.
The scope of measures that Serbia can undertake to discourage its citizens to ask asylum in the EU is by far more limited compared to what the affected EU member states and the EU as a whole can do in this respect. Improving social and economic conditions of Roma population, which represent the majority of Serbian asylum population, is a long-term and systemic process. On the other hand, conducting the information campaigns about the impossible chances of getting asylum, as one of the short-term measures proposed by the Commission, is futile, as most of the Serbian asylum seekers are primarily interested in the asylum procedure rather than the final outcome of the application. One should not forget that asking for asylum is not illegal – every person has this right (Article 14, UN Convention on the refugee status, 1951), therefore the dissuassion practices are highly controversial. Even more problematic is the Commission’s recommendation given to the Serbian border police to stop the exit of its citizens, who they consider to be potential “fake asylum seekers”. In reality, this should be done by the Hungarian or Slovenian border police (or whichever is the first country of entry), who have the discretional right to decide who to let on its territory. As the majority of the asylum seekers are Roma, preventing them to exit Serbia would represent an open act of discrimination.
All these facts make the case for arguing that the unadjusted asylum systems of the EU member states are the core cause that produced the “fake asylum seeker”. As the Swiss example demonstrates, the fruitful measure that the affected EU states could follow is to shorten the asylum procedures for the applicants from the Western Balkans that have undergone the visa liberalisation process. On the other side, the opponents of the accelerated procedures stress the potential danger of human rights violations that would appear as a side effect. However, the asylum statistics clearly demonstrate that the countries with the lengthy asylum procedures, such as Germany and Sweden, have lower recognition rates for the Serbian citizens than Austria and France, where the number of requests is significantly lower because the procedures are shorter. Therefore, generous asylum procedures do not automatically induce higher chances of being granted asylum. At the same time, accelerated procedures are in accordance with the international standards, provided they respect the basic procedural stages (personal interview, right on legal representation, right to appeal, non-refoulement principle).
As long as the asylum systems of the affected EU countries remain in status quo, witnessing a substantial drop of the asylum seekers’ figures from the region will be extremely unlikely. In the meantime, the EU member states can further assist Serbia in implementing its Strategy for Improving the Position of Roma and the Strategy on Reintegration of the Returnees under the Readmission Agreement, by providing more in-house experts and additional financial support. Suspension clause will be adopted sooner or later, most probably at the moment when Serbia will be negotiating its membership to the EU. The eventual activation of the suspension clause could have major repercussions for Serbia’s EU integration process. Apart from the measures in place, the Serbian Government should engage additionally to prevent the situations which would allow suspension clause to be activated. It can be done by seeking partnership and cooperation with the affected EU states and by having regular consultations with the relevant stakeholders, notably the “visa-free-friendly” European Parliament. Moreover, Serbia should build its position through partnering with the remaining Western Balkan countries hit by the “false asylum seeker” phenomenon. Joint advocacy by the countries of the region would strengthen the position of each of them, while at the same time it would represent a perfect example of the always-desired regional cooperation.