FECL 35 (June 1995):
The draft implicitly pleads for a wider use of identity checks "in accordance with national law" [of the member states]. A person's residence situation must be verified "at least" where he or she "appears" to be residing in the country unlawfully. Provisions allow random checks "to counter threats to public order or security" and "in frontier areas and at ports, airports and railway stations handling international traffic, without prejudice to border controls". No objective criteria are specified as to how suspicions should be justified when carrying out such checks. Provisions that they should be carried out "in a non-discriminatory manner" and "based on objective criteria which comply with non-racist and non-xenophobic principles" have simply been deleted.
It has become a characteristic of foreigner legislation in all European states that the burden of proof is increasingly being shifted onto the individual foreigner, thereby contributing to a public image of foreigners as being suspects by definition. The draft further confirms this trend by stating that public services should, as a general rule, refuse any benefits, "in particular in the area of health, retirement, family or work", prior to checks on the residence and employment situation of the beneficiary. As a consequence, public services are expected to denounce suspected illegal immigrants seeking assistance. Article 5 says: "Member States shall inform the central and local authorities responsible for dispensing benefits to foreign nationals of the importance of combating illegal immigration in order to encourage them to apprise the competent authorities, in accordance with national law, of such cases of breaches of the residence rules as they may detect in the course of their work".
Foreigners who wish to get married are suspect too, of course: "The authorities responsible for marriages should also have their attention drawn to the risk of non-genuine marriages".
On the other hand, the draft contains no obligation on Member States to introduce or implement sanctions against employers of illegal immigrants. It merely states that such employers "may be subject to appropriate penalties which may extend to prison sentences, fines or confiscation of the tools of trade or the proceeds of the unauthorised work" [our emphasis].
The draft also suggests in a non-binding form that member states set up central registers of foreign nationals. Such computerised foreigner registers have drawn strong criticism from data protection commissioners in Germany, the Netherlands, and Switzerland.
Source: Draft Council Recommendation on harmonising means of combating illegal immigration and illegal employment and improving the relevant means of control, 7972/95 ASIM 188.
The draft, as a whole, amounts to a common inter-ministerial declaration of general policy aims, rather than to a legal text with precise binding provisions. The discretionary "may" is clearly more frequent in the text than the compulsory "shall", and it is repeatedly emphasised in the different provisions that they shall or may be implemented by the Member States according to their national law. The officials in the K4 Committees Steering Group 1 and the COREPER responsible for the draft seem to have gradually become aware of the non-binding character of its provisions. Indeed, before the JHA Council's meeting in Luxembourg, the draft was suddenly reduced from a "Joint Action" (maybe legally binding) to a "Recommendation (certainly not legally binding).
Thus, the document should be viewed as encouragement or moral exhortation for the ministers concerned to realise the policy objectives of the Recommendation in their own member states. They should do so by seeing to it that the national executive bodies in charge make use of the most extensive interpretation of existing national rules (e.g. on the admissibility of ID-checks), rather than by time-consuming efforts to introduce new and presumably controversial laws.
The instrument of "Recommendations", provides a elastic form - more elastic even than "Joint Actions" - of political decision-making and, in effect, law-making. Recommendations have the great advantage (from the ministers' point of view) of requiring the involvement of neither the European Parliament, nor the national parliaments.
The very wording of the draft once again highlights the hybrid and blurred character of the instruments of "Recommendations and "Joint Actions", in the no-man's land between the rule of law and the rule of the executive.
On "executive law-making" in the EU, see also FECL No.32: "Muddling with Europol: Who wants what?"; No.11: "'Deregulation' of legal and institutional frameworks - a handy tool for shifting power from legislative to executive bodies".