The Polish government is in need of non-governmental advice so it could minimize the political and social costs of the restrictions following from the introduction of the Schengen visa traffic on its eastern borders.  Think tanks and NGO umbrella organizations recognized the problem organizing several conferences and publishing policy reports. Their usefulness to the government is limited, however, since they:

*  fail to acknowledge the government’s proposals,
*  do not target specific clients within the government,
*  do not relate the migratory pressures to the capacities of the state institutions,
*  do not attempt to arrive at coherent visions of the challenge and present structured sets of recommendations. (see Overview of Policy Reports)

These problems characterize an early stage of formation of a network of experts, who have only recently begun to cooperate and debate on the future policies the government might take.  Until now, they worked individually, either commenting on the coherence of government proposals or describing the larger migratory and political environment without the connection to particular institutions of the state.  These independent experts by an large did not have an opportunity to develop a sense of effectiveness in influencing the institutions of the state.  (see Overview of the Network of Experts)

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The national government has recognized that choices made in negotiating and then implementing the Schengen acquis are no longer purely technical and legal, but involve political tradeoffs and have social consequences.  Already while the 1997 Aliens Act was being implemented, ministries demonstrated opposite interests and what seemed like a technical change in the border checks turned out to have major consequences for the economic interests of major groups in society.  The policy process which was internal and legalistic could not contain a broader debate on the relation of the harmonization of the border regime with the EU to a larger conception of Polish Ostpolitik which was raised when the policy contributed to a major decline of small-border trade with the Eastern neighbors.  What was once a relatively straight path from the ministerial departments through interministerial consultations, parliamentary committees and a debate with the token participation of independent experts turned into an exchange of views between the Ministries of Interior and Foreign Affairs in the press.  The policy had to be compromised to minimize the negative impact on the economy and a breach of trust with the Western partners came about.  (see Changing Government Demand)

Such an unintended shift from closed and technical policy-making to the revelation of a policy reversal in the open will have to be prevented if the Ministries of Interior and Foreign Affairs want to maintain high levels of trust they enjoy with their EU counterparts as well as with Ukraine as Poland’s strategic partner in the East.  Should
Poland misjudge its capacity to monitor the Eastern border or fail to issue Schengen visas efficiently in its consulates, the period in which the Western border will keep standing while the Eastern border will be upgraded will be extended by the Schengen Executive Committee.  Since the external border management system is tested by the internal members of the Schengen area for the weakest link, any single major public expression of doubt in the efficiency of controls in the East will warrant distrust in the whole system.

Such a scenario would increase the costs in the medium term for the reorganization of the Border Guards, who instead of being able to move the staff and equipment to the Eastern border and the entire territory of the state, would need to maintain the present levels in the West while increasing those in the East and in the interior of the country at the same time.

Another public debate after the fact could hurt the government as a whole in political terms.  If the consulates miscalculate its capacities to issue sufficient numbers of short-term visas or set their price too high, the Ministry of Foreign Affairs will be held guilty by the local communities for causing economic imbalances in the border areas dependent on small cross-border trade and by the Ukrainian government of creating unnecessary barriers to the free movement of its citizens.  As a result, the EU partners might find the Polish consular service unfit to issue Schengen visas for the time being.

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Observers from both the government and non-governmental organizations noted that formally until the Aliens Act of 1997 centralized formulation and coordination of migration policy at the Ministry of Internal Affairs and Administration, there were as many policies as there were institutions involved.  One of the first steps toward developing consistent policy was preparation of the “Schedule of Work for Creation of Basic Foundations of State’s Migration Policy” in April 1997.  The decentralization of the policy was so great that the lead agency, the Department of Migration and Refugees at the Ministry of Interior had to collect materials from as many as ten institutions including: Border Guards, the Police, the National Security Office, the State Protection Office, Ministries of Foreign Affairs, of Justice, and of Labor and Social Protection.  In October 1997, Interministerial Team on Migration was established, which includes contributors to the “Schedule” (except the Ministry of Justice) and the Ministry of Education and is open to non-governmental organizations.  The Team was appointed to review projects on the basic directions of the state migration policy and drafts of legal acts on migration and refugees, come up with solutions to improve the coordination of the central government agencies in the field of migration and asylum, and to initiate research on migratory movements in Poland.  The Team is staffed by the Ministry of Interior and reports directly to the cabinet.

Second Aliens Act of 2000 goes one step further toward consolidation of formulation of migration policy by merging two departments at the Ministry of Interior: Migration and Refugees, and Citizenship.  Thus a long-standing postulate of internal and external experts that one main client for advice be set up—as an equivalent of immigration office in other countries—was fulfilled.  The department is going to be staffed with experts who drafted the comprehensive instruments for its operation—Aliens Act, Repatriation Act and Citizenship Act, all passed in 2000.  The fact that all these projects were subject to review by independent legal experts is a sign of openness of the staff to external advice.

The creation of the Office for the Committee of European Integration added another dimension to the review of legislation.  The Department for Legal Harmonization of the Office receives the draft of a law from the lead agency—in this case most often the Ministry of Interior—and checks that both the wording of the act and the consequences of its implementation will be in agreement with the acquis communautaire.  Since much of the matter in migration policy remains still the prerogative of the nation state—as for instance long-term immigration policy—some laws, such as the Act on Repatriation, have been judged by the Office to remain outside of the scope of accession commitments of Poland.

With the passage of the Act on Protection of State Border in 2001, the legal harmonization of the national acts with the EU acquis has been practically completed.   To fulfill the commitment undertaken by the cabinet to implement the Schengen acquis by the end of 2002, however, requires a concerted effort of many agencies at technical and institutional development.  Ministry of Interior published a schedule of work needed to prepare the Border Guards, the consular and customs administrations for making the eastern border an external border of the EU, entitled “The National Strategy of Integrated Border Management.”
But the National Strategy takes no account of the non-governmental position.  This is wrong in the context of  the adverse consequences of hasty introduction of restrictions on the Eastern borders in 1998, which demonstrated that it is futile for the government to treat policy changes as technical matters only.  Accession negotiations over adoption of Schengen requirements have serious social, economic and foreign-policy consequences.  There is little time left for working out a coherent set of medium- and long-term policy goals, which will meet several criteria of feasibility: it should utilize the invested resources in an optimal manner, be sustainable politically and achieve larger goals of the state and society.  Polish government has limited funds, knowledge and support to create a policy package whose direct costs and indirect consequences it could cover fully.

There are already signs that the government experts come to value big-picture ramifications of the acts they draft, and need independent support for their ideas both within the government and vis-à-vis the European Commission.  In the end of 1999, the cabinet decided to make the Negotiation Position public.  The Position was presented in detail at a ‘trilateral table’ on Justice and Home Affairs which brought together Polish negotiators, representatives of the Ministry of Interior and several non-governmental organizations in November 2000. Andrzej Gras of the Committee for European Integration addressed NGO audience about the dilemmas of the Polish position. However, his presentation which assumed the knowledge of the negotiation process and of the details of the acquis was not met with informed response.

Broad consultations with non-governmental organizations are ineffective because to use these opportunities best, experts with legal experience in the topic are needed, which restricts the offer to a few people, who have been known for their work on the drafts of parliamentary acts.  Their additional asset is the trust which they gained with the government officials throughout the informal and formal consultations on those acts.

Independent experts have already shown willingness to relieve the government in two areas: offering ideas in the areas beyond the strictly legal questions of the acquis, and estimating the broader consequences of introducing these policies. An even more direct form of partnership between the Polish government and independent experts uses the ideas generated within the government, which however cannot be voiced by governmental experts due to the political constraints on the negotiation process.  The Recommendations section will outline a proposal on how to use the greater room which the independent think tanks have for maneuver.

Non-governmental side acknowledges that the government is vitally interested in the maintenance of trust with the West European partners, while the government is open to the broader perspective from non-governmental organizations in view of the domestic political impact of accession in the area of Justice and Home Affairs.

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