Discussions about the Association Agreement between Central America and the European Union will take a turn for the worse at the occasion of the Fifth Round of negotiations that will take place in Guatemala City from October 6 to 10. This very ambitious agreement, whose conclusion is expected by the end of 2009, will settle the grounds of a new partnership between the two regions based on three pillars: Political Dialogue, Cooperation, and Trade. The Fifth Round will be the occasion to start discussions regarding the new shape that will take immigration policies in both regions. Regarding the differences in the perception of what these policies should be, finding a common ground shouldn’t be a pushover.

On June 18, six years after its first draft, the European Parliament adopted a directive establishing common standards and procedures in Member States for returning illegal third-country nationals, the ‘return directive. The new law immediately received its share of critiques from governments and human rights observers from both sides of the Atlantic. Governments in the regions have expressed their indignation and their fear to make the situation worse for immigrants of their countries as well as to violate human rights. In a vibrant manifest, Bolivian President Evo Morales stated that Europe couldn’t promote the trade and capital market liberalization on one hand and refuse similar openness regarding the movements of people on the other.

For its part, the Honduran government expressed worries about the new immigration policies; the Ministry of Foreign Affairs even threatened to block further negotiations with the EU if the directive was adopted. Now that it has been done, Central American countries will try to circumvent the application of the directive by signing a bilateral agreement that would have the effect of a superior rule and guarantee them preferential treatment. This is nevertheless not likely to happen since such exceptionalism would marginalize the European legislative process. And European institutions would hardly accept to be denied in this way.

While the cover of the ‘return directive’ in Honduran media has been largely unfavorable, the European Union continues to defend it, proclaiming its numerous qualities. As it is often the case, the truth lies in the middle. ‘Honduras This Week’ tries to distinguish the good from the bad of the directive and to make the difference between information and propaganda.

The measures of detention and expulsion of illegal immigrants introduced by the directive aren’t new. They are in line with a lasting tradition in Northern Europe of organizing and managing flows of migrant arrivals. A good example of such continuity resides in the 18-month maximum length of detention for illegal immigrants established by the directive. Human rights NGOs have pointed out that one year and a half is far too long for people whose only crime is to look for a better life. Fair enough. Though, these NGOs forget to precise that new provisions will benefit immigrants arriving in countries such Germany or Sweden that were up to now entitled with unlimited periods of detention.

Another controversy resides in the ban from European territory for up to five years that accompany every expulsion measure. Once again, this figure has to be put into perspective with current national provisions that are on average superior, and even unlimited in some cases. In Spain, the first European destination of Honduran migrants, the re-entry ban period can climb to ten years.

In both cases, it has to be considered that European law is only reflecting the willingness of national governments. The period of detention and re-entry ban do not constitute the lowest common denominator of national demands, but rather the outcome of painful intergovernmental negotiations. The good news is that the directive does not produce strict legal commitment but rather establish thresholds under which countries are free to choose the actual level of severity. For instance, the 18-month detention is a limit not to exceed, but it can be lower. It results that Germany will have to soften its current provisions while France will be able to keep its 32-day policy untouched. As argued by the Commission, the fear to see member states transposing the directive systematically for more repressing rules should not materialize.

The Comite Consultativo para el Acuerdo de Asociacion entre Centroamerica y la Union Europea is the body in charge of informing and including the Honduran civil society in the debate surrounding the association agreement. It has published an informative note concerning the new directive in which it expresses its concerns regarding the respect of human rights and dignity in the application of the new provisions of the directive. It reminds that the sovereignty of states – in that case, of the Member States of the EU – reached a limit when it starts affecting the rights of foreign citizens. It is actually a recurrent criticism that the directive would be strictly directed towards the repressive aspects of immigration, leaving apart the fundamental principles of human rights and of judicial security. This affirmation is only partly true.

The new directive mentions at several occasions the European attachment to the respect of human rights and the fact that it will improve the conditions of the detainees in many countries. It emphasizes for instance the ‘superior interest’ of the children and the impossibility to expel or detain unaccompanied minors. It also generally promotes the protection of vulnerable people such as people suffering from illness. Nevertheless, some categories of ‘vulnerable people’ seem to have been left apart, such as accompanied minor that can still be detained with their parents. Moreover, standards for legal residence in European countries have not been decided yet. It gives credit to the argument that priority has been given to expulsion over the reception structures of illegal immigrants.

The adoption of the directive does not imply the massive deportation of Honduran illegal immigrants, as it has been reported in the national press. Instead, it allows to better control, monitor and finance the action of Member states regarding the returns. It implies that illegal immigrant will benefit from an increased number of rights such as the right to a written decision, information, linguistic support and legal advising, emergency care or the supervising of vulnerable people. It also enables Member states to grant the authorization of permanent residence for compassionate, humanitarian or economic reasons. This straightforward approach will reduce the ‘grey areas’ and improve legal uncertainty for the immigrants, what will, in its turn, allow the Union to become more generous in the matter of legal immigration. The proposition of the introduction of a blue card – an employment permit for legal immigrants - constitutes a concrete manifestation of the willingness to better supervise legal entrants.

It can not be expected from European Member States to abandon overnight their restrictive policies regarding illegal immigrants. Immigration is a hot topic in national policies and problems related to it are frequently reported in the newspapers. A balance has to be found between the rights of immigrants and the willingness of European countries to maintain their territorial integrity. Some safeguards of the proposals – detention as last resort, regular judicial oversight or superior interest of the child – aim at striking this balance. At least from a European point of view.

Central American countries will have a hard time trying to impose their views to Europe regarding immigration.

Nevertheless, the amalgamation of very different issues such as trade and immigration in one single association agreement offers them a unique opportunity to do so: the chance to use the opening of their markets as a counterbalance to more accommodating immigration policies. The European Union, fervently attached to obtain the same commercial advantages as its American rival, will be disposed to make concession in other areas. So that the competition between the two superpowers could finally turn to the advantage of Central American countries.