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By Dr Maja Grundler, Royal Holloway University and Jean Monnet Professor ad personam & Elspeth Guild, Queen Mary University of London 

This series of blog posts on Trade & Migration is published upon the initiative of Prof. Elspeth Guild  in relation with the controversial proposal for a regulation on the scheme of preferences for developing countries that the Commission links to the issue of readmission of irregular migrants.

Coordination of EU objectives in different fields of activity should be beneficial to all areas of EU law. Where problems arise, they often result from the attempt by policy makers responsible for one area seeking to impose their objective(s) and concern(s) on another field. Nowhere is this more evident than in EU migration policy. Perceived failures in making EU law and policy in the area of irregular migration effective (let alone determining what effective means in this context) within the domains under the control of DG Migration and home affairs have resulted in officials seeking to force their objectives into other fields.

For example, migration policy has long been linked with development policy. In 2005, the European Consensus on Development spoke of making ‘migration a positive force for development’ (para 110), but also called development ‘the most effective long-term response to forced and illegal migration and trafficking of human beings’ (para 40). A stronger focus in development spending on deterring (irregular) migration has been observable. Indeed, by 2017, the revised New European Consensus on Development promised to ‘address the root causes of irregular migration’ through development policy (para 41). As a result, a wide range of issues connected to irregular migration and displacement such as ‘smuggling and trafficking in human beings, border management, remittances, addressing root causes, international protection and return, readmission and reintegration’ became linked with development policy (para 40).

The EU’s Approach to Migration Management as a Threat to International Commitments?

Certain policy areas lend themselves particularly well to the EU’s ‘carrot and stick’ approach to migration management. Development policy is an example of this, as it allows the EU to practice ‘containment development’ – making the receiving of development aid conditional on controlling the movement of both partner states’ own population and any migrants transiting through their territory, while focusing aid efforts on addressing ‘root causes’ of migration.

Another example of the EU’s carrot and stick approach to migration management is its visa policy. Both visa liberalisation and visa facilitation have long been linked to third countries’ performance in the areas of return and readmission. In 2019, the EU’s Visa Code was amended to include an article (25a) on ‘Cooperation on readmission’, tying the cost and processing time of visas, as well as the availability of multiple entry visas, to third countries’ performance in areas seen to support readmission. Similar conditionality on readmission has now been suggested in the Commission’s new Generalised Scheme of Preferences (GSP) proposal, raising concerns with regard to the proposal’s compatibility with the EU’s international trade obligations (see the first blog of this series).

Both in the areas of development aid and visa conditionality, the insertion of migration management objectives has led to the EU and its Member States potentially breaching international commitments, particularly in the area of human rights. For example, in exchange for development assistance granted under several bilateral agreements between EU Member States and Libya, migrants are pulled back, detained and mistreated in the North African state. Meanwhile, as noted in an European Parliament Resolution, the use of readmission agreements raises concerns of (chain-)refoulement where ‘the readmitting country fails to honour their obligations under the Geneva Convention relating to the Status of Refugees.

Besides potentially having severe consequences for human rights-compliance, the intrusion of migration management concerns into other EU policy areas also has adverse effects on these policy areas’ effectiveness. Migration management concerns intrude upon and restrict trade with developing and least developed countries through a prohibitive visa policy.

The EU Visa Policy: From Restricting to Promoting Trade?

The current GSP objectives for developing and least developed countries provide these countries with a partial or full removal of customs duties on two-thirds of tariff lines (Standard GSP), 0% tariffs in exchange for implementation of certain international conventions (GSP+), and duty-free, quota-free access to the EU market for all products except arms and ammunition (Everything thing But Arms – EBA). The importance of GSP for developing and least developed countries is demonstrated by the negotiation in the international community of an exception from the principles of Most Favoured Nation treatment and the guarantee of non-discrimination. The convergence of development and trade objectives has been very beneficial here in creating real possibilities for developing and least developed countries to level up.

In the cross-fertilisation of policy objectives across fields of EU law, when examining the application of development and trade objectives to promote developing and least developed countries’ participation in the global economy on an equal footing, the area of visa, border control and migration could easily accommodate measures to achieve this EU objective which would assist nationals of those countries to have greater access to EU territory (and markets) rather than punishing them with exclusion on account of some Member States’ troubles in making their expulsion policies operational. After all, the International Monetary Fund considers that remittances from migrant workers to their families and associates in the country of origin are more stable (and beneficial to development) than capital flows. Thus, just as there are positive synergies between EU trade and development policy, visa policy could usefully be harnessed to better achieve the EU’s trade (and development) policy objectives. In order to promote trade, business people need to be able to cross borders to reach out to new markets, attend trade fairs and become part of the global, not only the local, economy. Yet, obtaining visas can be a substantial obstacle to such movement, particularly when the movement is towards the EU’s Schengen area.

Indeed, EU visa policy does not encourage access for nationals of developing or least developed countries to EU territory. According to the UN Conference on Trade and Development (UNCTAD), as of 2022, the list of least developed countries includes: Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of the Congo, Djibouti, Eritrea, Ethiopia, The Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Lao People’s Democratic Republic, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Myanmar, Nepal, Niger, Rwanda, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Sudan, Timor-Leste, Togo, Tuvalu, Uganda, United Republic of Tanzania, Yemen and Zambia. At the moment, almost all of them – save a number of island states (Kiribati, Solomon Islands, Timor-Leste and Tuvalu) – are on the Schengen short stay visa black list (Annex I to Regulation 2018/1806), meaning that their nationals must pay € 80 (on average) for a visa to come to the EU. The EU has even gone so far as to place additional restrictions on Schengen visa issuance (and increased costs) for citizens of Gambia on the basis of alleged failures in cooperating in return and readmission of their nationals from the EU.

In 2021, EU Schengen states received 3 million applications for short stay visas. On average, they refuse to issue visas to about 13.4% of applicants. But the refusal rates for least developed countries was generally much higher. In Nepal, Finland refused to issue 23.9% of visa applications and Germany 26.1%; For Haiti the numbers are 38.4% not issued by France and 32.3% not issued by Spain. Below is a table for the non-issue statistics for Angola where nine Member States have consulates:

EU state Percentage of non-issuance
Belgium 47.2
France 44.9
Germany 5.5
Hungary no data
Italy 4.1
Netherlands 54.1
Poland 40.9
Portugal 4.8
Spain 31.6

None of these three countries, Angola, Haiti and Nepal, are in the top 20 countries of third country nationals found to be ‘illegally’ present in the EU 2015-2021. The visa obstacle to participation in the (EU part of the) global economy by these three countries is enormous and disproportionate to the average number of visa applications not issued to all countries whose citizens are required to have a visa.

Visa requirements constitute a serious obstacle to trade not only for least developed countries benefitting from the GSP’s arrangement. Both the Standard GSP and GSP+ are aimed at (in case of the GSP+ ‘vulnerable’) low and lower-middle income countries to assist development through preferential trade with the EU. Those citizens who need a visa to come to the EU include nationals of GSP countries: Armenia, Belarus, Kazakhstan, Russia and Turkey, as well as GSP+ countries Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan, Philippines and Sri Lanka. A consistent visa policy would be to remove all the EBA countries from the mandatory visa list and review all the GSP(+) countries with a view to removing them also for the mandatory visa list (with the possible exception of Russia and Belarus on grounds of the invasion of Ukraine and participation in the war, respectively).

Five states on the least developed country list are also among the top 20 countries whose nationals were classified as ‘illegally’ present in the EU 2015-2021 – Afghanistan, Bangladesh, Eritrea, Guinea and Somalia. For individuals from these states, who are irregularly present, but intending to participate in trade-related activities, Member States could decide to grant autonomous residence permits on the basis of Article 6(4) Return Directive for the explicit purpose of assisting development and trade objectives.

Currently, EU migration management objectives intruding on other EU policy areas have largely negative consequences, both for human rights-compliance and for the effectiveness of EU policy itself. Yet, there is also potential for positive synergies between the different policy areas. Like development, visa policy could be used to promote, rather than restrict, trade by allowing nationals of countries benefitting from GSP, GSP+ and EBA arrangements to travel freely to the EU for business purposes and preferential access to the labour market. A more effective alignment between different areas of EU policy is possible if policy makers and Member States are willing to shift their priorities from restricting migration to harnessing its benefits.