Ben Hayes | ukwatch.net

Britain's Financial Guantanamo

Ellie Keen — Wed, 23 Apr 2008 00:00:00 +0000

This Thursday [24 April 2008], Mr Justice Collins of the High Court will deliver his judgment the case of ‘G’, ‘K’, ‘A’, ‘M’, and ‘Q’ v. H.M. Treasury. In the words of Rabinder Singh QC, “the facts of the case are reminiscent of an Austro-Hungarian novel”. At issue are two ‘Orders in Council’ adopted under the 1946 United Nations Act. This Act allows the government to introduce domestic law to implement UN agreements – in this case a series of Security Council Resolutions dealing with the financial sponsors of terrorism – without consulting parliament.

Since ’9/11’ the UN has maintained a list of ‘individuals and entities associated with al-Qaida or the Taliban’ whose assets must be frozen by member states, a list that now stands at 482 entries. The EU also maintains a ‘terrorist’ list. Senator Dick Marty, who headed the Council of Europe’s investigations into ‘extraordinary rendition’, recently described the lack of legal safeguards for those affected by these regimes as a ‘scandalous abuse of human rights’. The EU Courts have concurred (see Statewatch ‘terrorist list’ site).

In addition to the UN and EU ‘terrorist’ lists, the UK government, via the Treasury, also ‘designates’ persons suspected of involvement in terrorist-related activity. This regime, the terms of which have not been debated by MPs, provides for the freezing of funds of anyone suspected of involvement in terrorism, however tenuously and regardless of whether they have been named by the UN or EU sanctions committees.

‘G’, ‘K’, ‘A’, ‘M’ and ‘Q’ are among those ‘designated’ by the Treasury pursuant to the Terrorism Order 2006. They received identical letters informing them that: ‘The Treasury has reasonable grounds to suspect that you are, or may be, a person who facilitates the commission of acts of terrorism’ [emphasis added]. But, ‘in the light of the sensitive nature of the information on which this decision was taken we are unable to give you further details’.

‘G’ then received another letter saying he had been designated by the UN Sanctions Committee. This letter said that he could petition the UK government to seek his removal from the UN list, but it failed to mention that it was actually the UK government that had secured his inclusion in the first place. For those designated by the UN Sanctions Committee there is no independent appeals procedure, nor right to know the reasoning behind the decision. The Al Qaida and Taliban Order 2006 gives effect to UN designations in the UK.

Once informed of your ‘designation’, you have 14 days to provide the Treasury with full details of all your assets – properties, rental income, bank accounts, employment status, the employment status of your wife, any benefits either of you receive, and any other ‘economic resources’ held by you or on your behalf. Failure to provide this information is a criminal offence. All of your assets are then frozen by the Treasury. After this, you and your family can apply to the Treasury for a licence to permit access to your assets or income for ‘basic expenses’ only.

It is now a criminal offence, punishable by up to seven years in prison, for anyone who knows of your designation to provide you with any funds or economic resources outside the terms of a Treasury licence. The details of around 40 people designated by the Treasury have been published, whilst an unknown number of designations remain entirely secret. These designations are known only to those affected, to financial institutions with access to a password controlled Treasury website, and to other individuals and organisations who the Treasury decides to notify in writing – typically family members, friends, associates, employers and social services. If you have the misfortune to have been personally notified of a designation, it is a criminal offence to disclose the details to anyone else, even your partner. In cases where designations have been publicised via the Treasury website, anyone providing funds or economic resources to a designated individual will be presumed to know of the designation, and therefore liable to prosecution.

Following designation, there is no immediate provision for the now obviously destitute designees, or their families, to access any funds at all. Entitlement to welfare benefit suddenly stops. Unless a designated individual understands what are extremely complex procedures, only a solicitor can lawfully prevent them starving, by petitioning the Treasury for a licence. These licences typically permit designated individuals who are married to receive a maximum of £10 per week in cash. The remainder of their benefit entitlement is paid, under licence, to their spouses. The spouse may only spend this money on basic expenses for the family. Unmarried designees are permitted basic expenses for themselves.

At the end of every month the licensee has seven days to submit accounts to the Treasury’s Asset Freezing Unit, detailing each and every penny spent. Receipts must be provided for all items of any value, however small. Failure to comply, or failure to fully disclose expenditure, is a criminal offence. In a related case recently before the Judicial Committee of the House of Lords, Lord Hoffman expressed incredulity at the “meanness and squalor” of a regime that “monitored who had what for lunch”.

Any other expenditure, or the procurement of any other ‘economic advantage’ that does not constitute a ‘basic expense’ requires a separate licence. But what is a basic expense? If ‘A’ wants an ‘Oystercard’, or ‘K’ needs a new pair of shoes, is this permitted? How much can one spend on shoes before they cease to be basic? Buying shoes which are not considered to be ‘basic expenses’ is a criminal offence. One of the designees sought clarification from the Treasury on whether he could buy three new pairs of shoes: smart shoes, trainers and hiking boots. To date, the Treasury has yet to answer this question, deeming it so complex as to require advice from a minister.

It gets worse. If ‘Q’ wants to borrow his wife’s car to take the kids to school, his wife needs a licence to lend it to him. If ‘M’ wants to borrow his neighbour’s lawnmower, the Treasury has stated that in certain circumstances the neighbour needs a licence to lend it to him. Since it is a criminal offence to provide any economic good to a designated person, is making a designated person a cup of coffee a criminal offence? Were these matters not so seriously affecting the mental health of those concerned, the facts before the High Court would be laughable.

Mr Justice Collins has before him a number of fundamental questions concerning the rule of law in Britain. Primarily, it is argued that the government’s Terrorism and Al Qaida Orders of 2006 are ultra vires the UK’s United Nations Act of 1946. In other words, could the drafters of this Act ever have envisaged or intended to legitimise such an extraordinary regime? Similarly, does the Terrorism Order go beyond what the UN Security Council Resolutions reasonably intended of the member states? Lawyers for the applicants argue that for a regime of this nature – like the ‘Control Orders’ regime – there is a clear constitutional requirement for an Act of Parliament.

It is also argued that the Terrorism Order contravenes the principle of ‘legal certainty’, criminalising in such bizarre circumstances not just those designated, but potentially an endless circle of families, friends and associates. It seems even clearer, as also submitted, that the Order interferes disproportionately with the fundamental rights to private and family life, to property, and to a fair hearing in accordance with the European Convention on Human Rights (not least because designation is open-ended with no provision for even periodic review).

Finally, is it really acceptable for the UK government to introduce, in a manner which has excluded all parliamentary scrutiny, such draconian sanctions on the basis that it merely suspects that there may be grounds to suggest that someone may be involved with terrorism? Anyone who knows anything about the standards and burden of proof required by UK law must harbour serious reservations. That the police have not even bothered to interview ‘K’, ‘A’, ‘M’, ‘Q’ or ‘G’ about their alleged involvement in financing acts of terrorism also speaks volumes. Over to you, Mr Justice Collins.

Surveillance Society

Ellie Keen — Sun, 27 Jan 2008 01:44:29 +0000

In 2004, Richard Thomas, the information commissioner, warned that Britain was ‘sleepwalking into a surveillance society’. In 2006 he suggested that we were ‘waking up to a surveillance society that is in fact all around us’. He hasn’t said much this year, but by implication it must be around breakfast-time in the surveillance society by now.

It’s easy to get worked up about surveillance. By definition, the surveillance society is not a democratic society in which surveillance is pervasive. It’s one in which surveillance is so pervasive that it threatens the very fabric of democracy. The libertarian intuition that we are ‘descending into a police state’ is borne of this concern. As ever more laws are introduced to regulate social and material life (not least the 3,000 new criminal offences said to have been introduced by New Labour), and ever more aspects of our lives are monitored and recorded, the more we are asked to account for ourselves and the more we can be held accountable for.

In a nutshell, the problem is that it is but a few discrete steps from the information society we cherish to the surveillance society we fear. To avail ourselves of today’s hi-tech goods and services we have little choice but to allow those who provide them to collect more and more information about us. And let’s be honest: as long as they keep this information secure and confidential, we’re not all that bothered. Secretly, we may even quite like being profiled, targeted and ‘rewarded’ with Amazon book recommendations, discounts and freebies.

Although unwanted ‘spam’ has gotten beyond a joke, the principles of ‘data protection’ appear to work reasonably well in the private sector. The 1995 and 1997 EC directives, and the 1998 UK Act, have imposed clear legal obligations on ‘data controllers’ to protect personal information, while ‘taking your privacy seriously’ has become a corporate mantra.

So far so good: things to hide, but little to fear. Bring the state into the debate, however, and the equation quickly changes. A new generation of surveillance technologies, population databases, identity management systems, ‘dataveillance’, data-sharing and data-mining tools are providing the state with the capacity to construct an almost unimaginably detailed picture of our private lives. At the same time, our celebrated data protection laws are being systematically circumvented and unravelled in order to legitimise the very practices they were designed to prevent.

Who’s tapping your phone?

A few years ago, the police needed a warrant to access your telephone records – now all they need is your phone number. This revolution in communications surveillance was carefully orchestrated. In 2000, parliament adopted the misleadingly titled Regulation of Investigatory Powers Act (RIPA) which, rather than regulating state surveillance, bequeathed to the police and a host of other public bodies the spook-like power to access directly the records held by communications companies. In place of a judicial warrant, an ‘authorisation’ by a senior officer would now suffice. In accordance with data protection rules, telecoms companies were also duly deleting our phone records after we had paid our phone bills (a matter of a few months at most). ‘Not so fast,’ said the Home Office, using the 2001 Anti-Terrorism, Crime and Security Act (ATCSA) to introduce a voluntary code on ‘data retention’, under which the major ‘telcos’ would not only retain their records for up to one year, but provide the police with direct access to their databases. The House of Lords did its level best to restrict the purpose of the Act to ‘serious crime’ but this would inevitably prove meaningless once data had been retained.

Not content with the voluntary code, the Home Office now demanded mandatory data retention by all telecoms companies and internet service providers (ISPs). But rather than returning to parliament, which had already judged ATCSA a bridge too far, the UK government went to the EU to seek an agreement with the force of European law. A discreet amendment to EU data protection rules followed in 2002, and an EC directive on data retention was eventually adopted in 2006.

In 2007, the Home Office returned to parliament to make its voluntary code mandatory by statutory order (meaning no debate), with the justification that the UK was merely fulfilling its obligations under EU law. This is a flagrant case of ‘policy laundering’. Just as ‘money laundering’ describes the passage of illegitimate funds through outside institutions and back into legitimate circulation, policy laundering involves the use of intergovernmental organisations to agree policies that lack political legitimacy in order to bring them into practice.

The cumulative effect of mandatory data retention cannot be understated. All our telephone and internet traffic data must now be stored for at least 12 months (perhaps longer in future – up to three years as in Ireland, or five as in Italy) in case the police or other state agencies need to look at it. The list of other agencies includes, among others, the Tax Office, the Food Standards Agency, the Department of Health, the Immigration Service, the Gaming Board, the Charities Commission and 475 local councils.

Should the police wish to see your telephone records today, they no longer need to show ‘probable cause’ to a judge. They just need to turn on their computers (or phone a friend). In 2005/6, this power was used a staggering 439,000 times over 12 months – a figure certain to rise with mandatory data retention and its extension to internet usage by 2009. The lack of independent scrutiny means we can only guess what the police were up to, but in accessing records more than 1,200 times a day, we can be certain that their activities went far beyond the scope of organised crime and terrorism.

Pulling a Swift one

Telecommunications data retention is but one example of the state placing legal obligations on the private sector to facilitate surveillance. ‘Policy laundering’ is again in evidence, somewhat ironically, in the EC money laundering directives of 1991, 2001 and 2005. These directives have effectively reversed the principles of banking secrecy and privacy in financial transactions by placing a legal obligation on financial institutions to retain data for five years and report all ‘suspicious financial transactions’ and customers to the police. In the UK, ‘failure to disclose’ those suspicions is now a criminal offence punishable by up to five years imprisonment.

The money laundering directives now also apply to auditors, accountants, tax advisors, estate agents, lawyers and notaries, dealers in high-value goods and casinos (not that this has done anything to curb systematic tax evasion and corruption by the rich and powerful), while under the UK Terrorism Act 2000, we are all now liable to prosecution for ‘failure to disclose’ any suspicions we may harbour about terrorist activities. As these so-called ‘due diligence’ obligations come to represent the wholesale privatisation of surveillance, government whistle-blowing, as David Kelly and Craig Murray can testify, is positively discouraged.

Further obligations have been placed on the airline industry to provide states with information about their passengers (so-called ‘passenger name records’ or ‘PNR’). Under successive EU-US PNR agreements – which the European Parliament voted against on four occasions – US agencies now have direct access to European passenger reservation databases. There are few meaningful restrictions on the use or onward exchange of the data they extract. This means that even if you’re only taking a BA flight from London to Amsterdam, up to 35 categories of personal information that you supply could find themselves in the US Department of Homeland Security’s inbox. Perhaps it’s time to start reading the ‘terms and conditions’ before ticking that box? Except that if you don’t tick that box, you can’t book the ticket.

In other cases, corporations are simply handing their data over to state agencies in the absence of any lawful requirement to do so. In 2006 the New York Times broke the story that the US was secretly monitoring every transaction sent through the global Swift money transfer organisation – which is based in Brussels – via an illegal ‘mirror’ in the US. The EU responded by formally granting the US access to the Swift data.

It is suggested that the use of ‘mirrors’ by the US government is widespread, and endemic where US-based multinationals are concerned. This begs a question: when corporations are requested to hand over or provide states with access to their data in the name of combating terrorism or some other evil, are they really going to refuse in practice? The same question applies to public bodies, with Transport for London apparently all too ready to provide the security services with a ‘backdoor’ into the congestion charge and Oystercard systems.

Stasi 2.0

The debate about ID cards masks far more insidious developments. Over the coming decade, the vast majority of the EU’s law-abiding population will be fingerprinted, registered and placed under de facto surveillance. Once again, governments have taken advantage of the EU to ‘harmonise’ national policy on the introduction of ‘biometric’ passports, ID cards, resident permits and visas. Article 18(3) EC of the EU Treaty should have prohibited EU legislation from the outset as it states clearly that the power to adopt legislation ‘shall not apply to provisions on passports, identity cards, residence permits or any other such document’. The member states simply ignored this provision and then used the new ‘reform treaty’ to belatedly add these powers to the EU mandate.

Under the ID Cards Act of 2006, from around 2010 everyone renewing their UK passport will be required to attend one of 69 ‘enrolment centres’, where they will be fingerprinted (all ten), photographed and asked any of the 200 questions designed by the Home Office to test the applicant’s identity, provenance and entitlement to remain in the country. Under EU rules, applicants for a visa to any EU member state will soon be subject to an almost identical process in their own country (with data retained in EU databases even if the visa is refused).

Your new biometric passport will contain an embedded radio frequency identification (RFID) chip that includes your fingerprints and other personal data, an identity card (with another RFID chip) and a number. The RFID chip is there to transmit your data, from distance, to special airport scanners, which scream ‘hack me’ to all those so inclined.

Your special number relates to your record in the UK national identity register (NIR), which links you to every other piece of information the state has ever collected about you. As the campaign group NO2ID has explained, the NIR will become ‘an index to all other official and quasi-official records. Through cross-references and an audit trail of all checks on the register, the NIR [will] be the key to a total life history of every individual, to be retained even after death.’

At the same time, a new generation of ‘e-borders’ will mean that all entrants are fingerprinted upon entry and given a de facto police record. The UK ‘e-borders’ system is to contain up to 90 specific categories of data on individuals and will record all movement into and out of the UK.

Shocked by the Stasi analogy in the subheading? You may be missing the point: the Stasi didn’t ask many questions because they already knew all the answers. Nor is it simply a case of ‘Business or pleasure, sir?’ making way for some rather more direct questioning. As more and more data is collected on the premise of border control, the techniques and technologies deployed at the border are simultaneously being deployed on the streets. ‘Multi-agency’ police checks (basically roadblocks with benefits, tax, immigration and DVLA inspectors in attendance), massive immigration raids and collective expulsions, hand-held fingerprint scanners, mobile access to police computer systems – these are all now matters of policy rather than legislation, and the subject of little if any debate.

You are a security risk

States are also investing heavily – and usually secretly – in the kind of predictive algorithms developed for direct marketing purposes in the belief that ‘risk profiling’ will help identify terrorists, criminals, psychopaths, problem children (see ‘Generation ID’, opposite) and other dangerous people before they have the chance to do us harm. This corresponds to more and more ‘preventative’ police powers – Asbos, security-based detention and so on. As EU policies, ‘terrorist profiling’ and computer-assisted passenger screening are now being introduced across Europe.

These types of programmes raise several fundamental objections. Primarily, by using assumptions about ethnicity, religion, nationality, lifestyle, education, health, wealth or criminal record as indicators of risk, these systems are intrinsically discriminatory. In turn, they inevitably lead to actions against large numbers of innocent people on a scale that renders the exercise both unacceptable and pointless. In the wake of the discovery of the Hamburg cell’s involvement in the 9/11 conspiracy, for example, German federal police agencies collected and analysed data on some 8.3 million Muslims (and suspected Muslims) in Germany but failed – despite hundreds of surveillance operations, arrests and interrogations – to find a single terrorist.

As Douwe Korff, international law professor at London Metropolitan University, points out, it is important to stress that this is not something that can be fixed by better design: ‘Attempts to identify very rare incidents or targets from a very large data set are mathematically certain to result in either an unacceptably high number of “false positives” (identifying innocent people as suspects) or an unacceptably low number of “false negatives” (not identifying real criminals or terrorists). This is referred to scientifically as the “base-rate fallacy”; colloquially, as “If you are looking for a needle in a haystack, it doesn’t help to throw more hay on the stack.”’

Democracy’s prospect

Despite the fact that the judicial regulation of surveillance is fast disappearing, many liberals have faith that the surveillance society can be somehow ‘democratised’ – a few new data protection rules here, a little bit more accountability there. This is disingenuous to say the least: mass surveillance, data retention and risk-profiling are the very things data protection law was designed to prevent. Once these practices are introduced, the law can give little practical effect to the supposedly fundamental right to protection from undue or arbitrary interference by the state.

Others suggest that the very same technology used to hold the citizen to account can be turned inwards, so that ‘glass citizens’ are governed by transparent states, as it were. But in a country that won’t even allow telephone intercepts as evidence in court because the police and security services don’t want to compromise their secret listening programmes, this appears a remote proposition.

So the job rests firmly with what remains of society. But in the absence of any rational appraisal as to the desirability and effectiveness of surveillance systems, never mind more concerted efforts to halt the march of the surveillance state (particularly via the EU), there can be little cause for optimism. And if you tolerate this, your children really will be next.

Ben Hayes is a researcher with Statewatch and the Transnational Institute

Our 'Freedom', Their Labour

eddie — Tue, 28 Mar 2006 15:46:08 +0000

The new European Commission “Policy Plan on Legal Migration” will introduce fast-track migration with settlement rights for skilled workers and temporary admission with no rights for unskilled workers

“Strengthening freedom” (from “illegal” immigrants)

It is getting difficult to remember what to call EU Justice and Home Affairs (JHA) policy. Having started life in 1991 as the rather ominous sounding “Third Pillar” of EU cooperation, JHA was renamed the “Area of freedom, security and justice” in the 1997 Amsterdam Treaty. With increasing criticism of the overemphasis on “security” it was recently renamed the “Area of freedom, justice and security”. But despite the spin, JHA policy remains predominantly about “security”.

This is problematic for the EU because it is still ostensibly committed under the Treaties to strengthening “freedom” and “justice” as well. It is therefore always interesting to see how the EU purports to do this – having recently introduced the mandatory fingerprinting for EU all passport holders, the mandatory retention of all EU telecommunications traffic data and the mandatory surveillance of all air travellers, the EU can hardly start defining “freedom” in terms of civil liberties.

Under the heading “strengthening freedom”, the latest EU “operational programme” reads:

In 2006 work will continue under this part of the Action Plan on promoting the right of all EU citizens to move and reside freely in the territory of the Member States. This calls for a focus on the associated question of further developing policy on asylum, migration and border controls (16065/05).

There is no mention of any other value, principle or policy. “Freedom” for EU citizens simply means being able to live and travel in “Fortress Europe”, which means increasingly repressive measures against refugees and undocumented economic migrants (and never mind if citizens’ residence and movement is less and less “free”). In 2006 the EU will thus continue work on restricting refugees’ access to Geneva Convention protection, preventing illegal immigration and trafficking into the EU, strengthening border controls, developing law enforcement databases such as SIS II and the Visa Information System, and the increased vetting and surveillance of visa applicants and holders. All of this is listed in the operational programme, together with further external action on “global migration management”.

In spite of these restrictive policies and this particular vision of “freedom” the EU is increasingly dependent upon migrant labour. On the one hand it requires highly skilled labour to maintain the competitive advantage of European economies and on the other it requires “casual” labour to maintain production and do the jobs EU citizens are unwilling to do. Until now, the member states have been unwilling to address this issue at the EU level.

Towards an EU policy on “legal migration”

In January 2005 the European Commission produced a “Green Paper” calling for a “broad discussion” on an “EU approach to managing economic migration”. It began by recognising that falling birth rates and ageing populations in the EU make the admission of economic migrants a political imperative. It also noted that the “main world regions are already competing to attract migrants to meet the needs of their economies”.

In response to the consultation the Commission received “approximately 130 responses”, 40 of which came from civil society groups and NGOs calling unanimously for a more liberal EU approach to immigration and migrants’ rights (1). Unfortunately, the writing was already on the wall. First, the EU member states had already shown no interest in adopting the relatively liberal Commission proposal on economic migration of 2001 (2). Second, the scope for EU policy would be limited significantly because of agreement in the draft EU constitution that it would be up to individual member states to decide on the volumes of economic migrants they admitted from third countries (3). Third, the Commission Green Paper itself offered a very narrow basis for discussion of economic “migration management”.

In December 2005, the Commission produced a “Policy Plan on Legal Migration” (4). “The public consultation”, it suggested, “drew the attention to possible advantages of a horizontal framework covering conditions of admission for all third-country nationals seeking entry into the labour markets of the Member States” but – entirely predictably – “the Member States themselves did not show sufficient support for such an approach”.

A class-based system

The EU is already committed to the “Community preference principle”, meaning that non-EU nationals should only be admitted for employment purposes if the vacancies cannot be filled by “national or Community manpower” – men or women from EU member states. However, this principle only really affects low-skilled migrants since most member states exempt highly skilled workers and corporate employees. In the light of the Community preference principle, the admission of ten new member states significantly reduces the need for labour from outside the EU, particularly from Asia and Africa where many current “economic migrants” originate. Put crudely, it is a preference for white European labour over black Third World labour.

This hierarchy is reflected in the status and rights accorded to different groups of people in the EU. Human rights are supposed to be universal, but in practise non-EU citizens do not enjoy the same rights as citizens. There is further distinction between a host of categories including long-term resident third-country nationals, short-term residents, refugees, temporary entrants, asylum applicants and illegal migrants – each group enjoying fewer rights the last, down to the “illegal alien”.

In its “policy paper” the Commission says it intends to introduce a general framework directive to guarantee “rights to all third-country nationals in legal employment already admitted in a Member State, but not yet entitled to the long-term residence status”. What this actually means is:

A single application for a joint work/residence permit – held by the worker and containing the most advanced biometric identifiers – could be proposed. While not significantly affecting national internal procedures, it would simplify procedures for immigrants and employers. In order to limit abuses and to fight against illegal employment, the financial responsibility of the employer could be engaged, as in the researchers directive. The validity of such a document should be inextricably linked to the existence of a legal work contract; exceptions to this principle could be foreseen under specific conditions of nationals [sic] labour markets, and will be addressed in the specific directives.

There is no further mention of how the economic, social and political rights of the “worker” are to be guaranteed. Will they able to change job or move country, for example? The status quo, coupled with the proposal that the employer could be “financially responsible”, suggest that this is very unlikely. At present, few member states link residence and employment so explicitly (Spain and Germany are best known for doing this through their quota and ‘gastarbeiter’ (guest-worker) schemes).

The “highly skilled”

The “exceptions” to this general framework are to be set out in four further directives. The Commission says its intention is to “strike a balance between the interests of certain Member States – more inclined to attract highly skilled workers – and of those needing mainly seasonal workers”. What this means is that different classes of economic migrants will be admitted under different conditions.

First, the global competition for highly skilled workers means that the EU is to offer them “attractive conditions” –

The vast majority of Member States need these workers, because of shortfalls in the labour markets pool of highly qualified workers. Furthermore, recent studies highlight for example that 54% of Med-MENA [presumably Mediterranean Middle Eastern and North African] first-generation immigrants with a university degree reside in Canada and the USA, while 87% of those having a lower than primary, a primary or a secondary level education are in Europe. In response to this situation a common special procedure to quickly select and admit such immigrants, as well as attractive conditions to encourage them to choose Europe could be devised. In this respect, it will be further evaluated whether to include intra-EU mobility or to opt for a more ambitious proposal, i.e. an EU work permit (EU green card), issued by one Member State but valid throughout the EU, on the understanding that rules regulating access to the national labour markets will be fully respected.

Another directive will cover “the entry into, the temporary stay and residence of Intra-Corporate Transferees (ICT)”. This is “in order to enable the reallocation of international companies’ key personnel and specialists within Europe”. In short, fast-track admission and full rights for the well educated, well trained and well paid.

The “seasonal worker”

For the low skilled, things are rather different:

Seasonal workers are regularly needed in certain sectors, mainly agriculture, building and tourism, where many immigrants work illegally under precarious conditions. The scheme will propose a residence/work permit allowing the third-country national to work for a certain number of months per year for 4-5 years. Entry and exit stamps should prevent abuses.

The aim is to provide the necessary manpower in the Member States while at the same time granting a secure legal status and a regular work prospective to the immigrants concerned, thereby protecting a particularly weak category of workers and also contributing to the development of the countries of origin. Even in presence of high unemployment, this category of immigrant workers rarely conflict with EU workers as few EU citizens and residents are willing to engage in seasonal activities.

By basing the scheme on temporary admission and temporary employment contracts it remains to be seen how the Commission intends to provide this lowest class of migrant workers with a “secure legal status”, particularly since neither the member states nor the employers have shown themselves at all willing to improve their lot. Long-term resident status, which is dependent under EU law upon five years continuous residence, will clearly be out of reach.

A final directive will cover “remunerated trainees”. Students, volunteers and researchers are already covered by legal migration rules, leaving what the Commission calls a “legislative gap”. “Allowing third-country nationals to acquire skills and knowledge through a period of training in Europe can be a way to encourage brain circulation, beneficial for both the sending and receiving country”. But as the Commission points out, “safeguards will be necessary to avoid abuses, i.e. trainees who are in reality underpaid temporary workers”. This is certainly the case already for many paid traineeships in the member states.

Human rights, economic wrongs

The Commission’s Green paper promised to improve the lot of migrant workers. If it genuinely intended to this, why was there no mention whatsoever, in either the Green Paper or the Policy Plan, of ratifying international conventions designed for precisely this purpose (the Migrant Workers Convention being the most obvious example). The answer, as noted above, is that the member states are not interested in migrants’ rights – only migrant labour.

From this starting point (and because the admission of economic migrants is essentially a national matter) EU policy was never going to be about admitting or rearing the migrant workers on whom its economies depend, but rather about controlling and coercing them. “Fortress Europe” is generally associated with keeping migrants and refugees out of the EU but it has long had an internal dimension geared toward the surveillance and control of those already here. As Dario Melosi has pointed out in Statewatch (vol 13 no 5), the construction and criminalisation of the “illegal” migrant is about the: ““subjectification” of recruits into a new draft of the European working class”.

This particular form of social control is extremely costly because it requires the vast apparatus of modern policing to be employed against those fleeing poverty and persecution, people who generally have no choice but to enter illegally. In this sense, “Fortress Europe” uses violence and coercion in the same way as modern nation-states – through surveillance, policing, laws and detention. But there is an extra dimension to “Fortress Europe”: expulsion, a threat faced by migrant workers with both regular and irregular immigration statuses. This ultimate sanction is crucial because it hands additional coercive powers to employers, both legal and illegal, by institutionalising a kind of “bonded labour” in which residence is dependence upon continuous employment and good behaviour. Temporary and illegal workers in particular are vulnerable to “super-exploitation”.

Such a system is both unjust and irrational. As the EU member states busy themselves trying to meet ambitious expulsion targets at phenomenal cost – tens of thousands of people every year in some member states – it might be asked why not offer these people employment where shortages exist. After all, the only crime they have committed is to come here to try to live and work, or to be with their families. Sadly, the European Commission has once again demonstrated the gulf between the rhetoric and reality of “freedom, security and justice” in the EU.

This article was originally published by Statewatch Bulletin of November-December 2005

Notes

(1) See “Commission website”:http://europa.eu.int/comm/justice_home/news/consulting_public/economic_migration/news_contributions_economic_migration_en.htm

(2) COM (2001) 386

(3) Art. III-267

(4) COM 669

See also

http: //www.spectrezine.org/europe/Paley.htm