Economic Migration

Economic Migration into the European Union: Standing at the Crossroads
DANIEL WILSHER*
Abstract
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European policies towards economic migration, as reflected in the positions of both the European Union institutions and the Member States, have been extremely restrictive over recent years. 1 Under the aegis ofthe European Union, policies on primary economic migration were aimed at preventing the flow of new migrants. The involvement of the European Community in this policy area was initially concerned with limited goals centred around completion of the internal market. Recently however the Commission has signalled the need to use immigration as part of EC employment and industrial strategy by seeking to increase the level of economic migration into the Union. This is directed at meeting growing labour and skills shortages that threaten economic growth and the viability of welfare systems. Liberalization may thus prove to be one of the characteristics of the migration policies developed by the European Community under its new powers deriving from the Amsterdam treaty. This paper seeks to evaluate this change in direction and to consider the legal and constitutional constraints upon any new EC immigration programme. It concludes that recognition that new primary immigration is essential to European economic growth has led the Commission to attempt to establish a wide package of migrant rights for political and pragmatic reasons. The economic needs of the Union have therefore given impetus to a more liberal policy on both primary migration and migrants' rights.
I.
Introduction
At the European Community level policy on economic migration has reached a new point of departure. In recent years the general direction of European
* Lecturer in law at City University, London. This article is based upon a dissertation undertaken as part of an LLM programme at Queen Mary College, University of London under the supervision of Professor Marise Cremona. I extend my warmest thanks to her for her assistance. I also thank Dr. Joanne Scott for her encouragement. The author is solely responsible for the content. 1 For a review of European immigration policy see A. Geddes, Immigration and European
Intergration: Towards Fortress Europe? (2000).
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policies on economic immigration has been marked by conservatism. 2 Now however, at the same time that the EC has acquired full competence over immigration and asylum, the coincidence of three different trends has led the Commission to consider adopting a more open and liberal policy on economic migration. First, demographic changes within Europe will produce a shortage of labour of all types in coming years and a growing dependent elderly population. 3 Second, the move towards 'globalization' has generated pressure to establish a more open policy towards migrants to Europe, particularly in order to secure skilled workers.4 Third, the failure to stem the volume of economicallymotivated illegal immigration into the EC indicates that a fresh approach to economic migrants is necessary. The Commission has recognized these trends in a recent Communication to the Council and Parliament which calls for a reappraisal of the 'zero immigration' policy of recent years.s The Commission requested that the Member States give consideration to the volume of economic immigration that they may be prepared to accommodate in order to begin to establish a European policy of controlled migration. In addition, the Commission has set out anumber of ancillary measures aimed at improving the status of migrants. The details of that Communication are considered below. Immigration can be considered as falling within three main classes: humanitarian, family reunification (or formation) and economic migration. Because of the interrelated nature of immigration policy, it is not possible to consider one aspect in isolation. However this paper will focus primarily on economic migration policy taken to include immigration by third-country nationals both across the EU and from outside the EU. With this limitation, the purpose of this paper is three-fold. First, it will consider the possible rationales of the new Treaty competence over economic migration and how these might shape EC policy. Second it evaluates the new policy and subsequent developments. Third, it considers the constraints upon EC action in this field and the likely reaction of Member States. This discussion must take place against a background of global change in the place of immigration policy generally. There has been a growing reduction
2 This approach was reflected in action taken by the Council under Art. K in relation to economic migration which included a Resolution of 20 June 1994 on limitation on admission of third-country nationals to the territory of the Member States for employment. This non-binding resolution adopted a set of principles in order to harmonize the policies of the Member States on economic migration. The principles confirmed that 'Member States will refuse entry to their territories of third -country nationals for the purpose of employment' subject only to limited and temporary exceptions. This was based upon the fact that 'all States have ... curtailed the possibility of permanent legal immigration for economic,social and thus [sic] political reasons'. The Resolution also sought to mark a return towards the 'guest worker' system by giving limited security of residence to migrants. " See for example the Lisbon Council Presidency Conclusions at p. 16. 4 For discussion ofthe migration aspects of globalization see D. Held, A. McGrew, D. Goldblatt, and J. Peraton, Global Transformations: Politics, Economics and Culture (1999). They conclude that modern migration patterns are more extensive but slighly less intensive than during previous epochs. 5 COM (2000) 757 final.
Economic Migration into the EU
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in the pure national sovereignty model of immigration control. Significant international legal, economic and political constraints upon national control over immigration have begun to be present. 6 The fact that the EC has assumed a joint competence with the Member States is merely indicative of this wider change in immigration policy. The cause of this continuing shift relates to the complex nature of immigration policy-making in the modern world, engaging considerations such as development and underdevelopment, human rights, citizenship and the integration of global markets. These constraints also bear upon any EC migration policy-making. Within this context, I will consider the extent to which the new migration policy proposed by the Commission is sensitive to these central issues.
II. What are the Possible Rationales for an EC Competence over Economic Migration? Immigration policy is in general always used to attain other goals, for example, in order to provide labour or to reflect humanitarian concern, rather than as an end in itself. These goals are, however, complex and controversial. The evolution of the EC over economic migration policy reflects this inherently controversial nature. There has been difficulty in reaching agreement on the proper goals of an EC immigration regime. Nevertheless, as the general objectives of the EC have become more ambitious, pressure for increased EC regulation of third -country nationals has grown. This has been largely because an EC migration policy was seen as important to the successful achievement of other EC policies, particularly completion of the internal markeU Recent developments in the treaties of Amsterdam and Nice have given the EC institutions much wider powers over economic migration than it had under Article K of the Treaty on European Union. 8 The Amsterdam treaty amendments also set out a new objective for the Union in Article 2 ofthe Maastricht treaty to maintain and develop the Union 'as an area of freedom, justice and security'. A new Directorate General for Justice and Home Affairs was charged with responsibility for achieving this goal. The responsibility for the free movement of persons of whatever nationality within the internal market moved from the Internal
See here S. Sassen, De facto trans-nationality ofImmigration Policy (1996). Geddes, supra n. l. 8 For a discussion of the changes see K. Hailbronner, 'European Immigration and Asylum Law under the Amsterdam Treaty' (1998) 35 CMLRev 1047. The Maastrict treaty had been an uneasy compromise. The third pillar measures were attacked by human rights and migrant group commentators concerned about the intergovernmental methods of the third pillar which were opaque, undemocratic and lacking in judicial accountability. For a critique of the Maastricht compromise and the effect of Amsterdam see for example H. D'Oliveira, 'Expanding External and Shrinking Internal Borders: Europe's Defence Mechanisms in the areas of Free Movement, Immigration and Asylum' in D. O'Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Treaty (1994). Also, D. O'Keefe, 'Can the Leopard Change its Spots? Visa, Immigration and Asylum following Amsterdam' in D.O'Keeffe and P. Twomey (eds.), Legal Issues of the Amsterdam Treaty (1999).
G
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Market Directorate General to this new Directorate General. The treaty amendments also effected the incorporation of the Schengen acquis into the acquis communautaire. 9 The Amsterdam treaty also gave power in Article 63 and 64 to the Council to adopt measures relating to the entry, residence and rights of third-country nationals resident in Member States. The Treaty of Nice has now introduced the co-decision procedure in respect of certain measures in relation to Article 62 on short-term visas. The new competence is thus wide enough to develop legislation regarding most aspects ofthe rights ofthird-country nationals. However the question of purpose of the new competence over immigration policy was left unclear. In light of the principle of subsidiarity it is clear that action at EC level may be justified to meet goals that can better be achieved by Community action than by the Member States acting individually. There are, it is suggested, five broad objectives that might underlie the development of a migration policy at EC level:
(aJ Completion of the Internal Market for EU Nationals In this model, migration policy for third-country nationals is ancillary to measures aimed at securing the freedom of movement of ED nationals. Therefore, a policy securing the movement of third -country nationals is required only if it is necessary to secure the movement of ED nationals. The movement of third-country nationals is not an end in itself. This has been the focus of EC policy until recently: thus Regulation 1612/68, which gives EC migrants the right to have their family move with them regardless of nationality. This measure was passed in order to facilitate greater exercise of the right of free movement given to EC nationals by the Treaty. The rights of third -country nationals are derived from those of the EC worker. If the EC worker no longer exercises treaty rights then the third-country national family member's rights are extinguished.lO Another example is the removal of internal border controls which, in order to allow EC nationals to move freely, necessitated ancillary measures giving third-country nationals deemed short-term visas. Similarly the Commission has proposed a number of measures aimed at securing external borders against third-country nationals as a quid pro quo for the removal of internal borders.H
9 This was achieved by means of Council Decisions of 20 May 1999 which allocated the legal basis for the full Schengen acquis to respective parts of the EC and EU Treaties. The immigration provisions of the acquis were largely allocated to the EC treaty Title IV. 10 See Diatta v. Land Berlin, Case 267/83 [1985] ECR 567. 11 The Commission's White Paper 'Completing the internal market' was published in 1985. This included proposed measures to integrate residence, entry, employment and visa policies in order to achieve completion ofthe internal market. The Commission argued that the removal of border controls for EC nationals could not be achieved without doing the same for third-country nationals. This was because it was not possible to distinguish between EC and non-EC nationals other than by continuing to maintain border controls. This was contrary to the goal of removing internal borders. Removal of border controls for third-country nationals however necessitated some form of deemed permission to enter being granted to them in absence of an actual permission to enter. In pursuit of this goal of completion of the internal market, the Commission put forward
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(b) Completion of the Internal Market for all Legal Residents of the EU Model (a) can be viewed as unduly restrictive in terms of completion of the internal market because it excludes non-EU nationals. To this extent, the EU market is not able to function as effectively as it could if third -country nationals were able to exercise the economic freedoms granted by the Treaty.12 This wider concept of the internal market would seek to guarantee the same rights to third-country nationals who are legally resident within the EU as are available to EU workers under EC law. By analogy with EU citizens, in order to enable and encourage third-country nationals to take up their free movement rights, they should be given the same security of residence and equal treatment guarantees. (c) Economic Immigration as an Aspect of Employment or Industrial Policy This approach sees migrants as potential sources of labour and skills to be employed as the economic circumstances of the EU demand. Thus, where the EU is experiencing labour shortages, migrant workers could be offered opportunities to fill vacancies. Similarly, if the EU economy entered recession, entry and residence of migrants could be restricted. Under this model, migrants only need be given those rights necessary to attract them to the EU to fill posts on favourable terms. Indeed, excessive security of residence might endanger the flexibility needed to reflect market conditions by reducing the migrant labour supply. However equal employment rights for third-country nationals might be required under this model so that the employment of EU nationals, another goal of Community policy, would not be reduced by low-paid migrants. (d) A Common Migration Policy Analogous to the Common Commercial Policy The adoption of a common policy towards migrants from third countries can be viewed as allowing the Community to ensure uniformity in the conditions
two separate but related measures in 1993-1995; the External Frontiers Convention (EFC) (COM (93) 684) and the Directive on the right of third-country nationals to travel in the Community (COM (95) 346). The EFC was proposed to be adopted under the third pillar of the EC Treaty as it related to external borders. The draft Directive was based upon Article 100 of the EC treaty-the internal market power. These measures were modelled on the Schengen system and were designed to allow removal of border controls by giving third-country nationals the minimum rights necessary to secure the internal market for EC nationals. Thus third-country nationals were to be given only a legal right to travel internally under the Directive for visits of three months or less. Under the EFC, external borders were secured to prevent unauthorized entry into the EC border-less internal space. The measures did not address wider issues such as the substantive grounds for allowing migrants to enter the Community for employment or their conditions of residence and equal rights. Neither measure was adopted by the Council due to disagreements over the status of Gibraltar. However a related Regulation harmonizing the rules regarding those thirdcountry nationals requiring a visa to visit any Member State of the EU was passed on the basis of Article lODe. This Regulation was one element in securing the external borders of the EU by ensuring that nationals of some, generally poorer countries, could not reach the EU external borders without a visa. 12 This is the well established Commission view. See COM (97) 230.
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under which third-country migrants are admitted to the Union. This can be seen as analogous to the Common Commercial Policy pursued by the Community in relation to the free movement of goods under Article 133 of the Treaty. Thus, a migrant admitted to one Member State for employment and residence would have to fulfil the same conditions and be granted the same rights as one admitted to any other Member State. However it is important to note that, in the context of the movement of goods, the common external policy was the logical consequence of the removal of internal barriers to trade. With no internal barriers to the movement of goods, divergent external policies were clearly unsustainable. In the context of third-country workers, a common migration policy without a removal of internal barriers to movement would be anomalous. There would seem to be little real justification for a common Community migration policy in the absence of an internal market for third-country nationals. It might be argued that, as labour is a factor of production, then a common entry policy would equalize the rules in respect of the entry of migrant workers so that no Member State could gain a competitive advantage. However this logic is not particularly strong and would apply to EC regulation of many policy areas, for example, demographic policies of the Member States which would also increase their labour supply. An internal market for third-country nationals would give the EC a stronger justification for an external policy because then divergent national rules on admission would not be sustainable in the face of trans-boundary movement of workers within the EU.
(e) Equality, Integration and Security of Residence for Migrants as Political and Ethical Goals There are obvious political and ethical arguments for migration policies that favour equal treatment for migrant workers. These principally relate to giving protection to the dignity and human rights of migrants as recognized in international conventions. 13 This would also include rights of family reunion as an expression of the right to family life. 14 The prevention of the economic exploitation of migrants is clearly likely to assist in their integration into their Member State of residence. The Community now has specific treaty power in Article 13 to address racism and xenophobia 1s but securing equal rights for migrants is obviously a crucial aspect of any policy against discrimination. This objective would represent further movement towards a more 'political' and less purely 'economic' Community because it seeks to enhance the status of migrant workers without necessarily connecting this to economic freedom of movement. This can be viewed as the corollary of the concern that led to the
13 For a full analysis of these obligations see R. Plender, International Migration Law (2nd ed. 1988). 14 Note however that the European Court of Human Rights does not recognize such a right save for cases where expulsion would interfere with family life. See Application 23218/94, Emir Gul v. Switzerland, Rep 4 April 1995. 15 Previously there had been some confusion over the extent of Community competence in this field.
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creation of an ED citizenship for nationals of a Member State. 16 The Community sought there to give a political dimension to the rights acquired under the Treaty. The concept of ED citizenship, whatever its limitations, 17 has however exacerbated the gap between the rights of ED and non-ED residents. The ideal of securing greater equality for third-country nationals stems partly from political concerns about such differential treatment. 18 It is not however clear how far EC competence over the rights of third-country nationals extends. Traditionally EC competence has related only to employment and social equality not wider questions of civil or political rights. 19 Each of these goals of migration policy suggests different measures to achieve them in terms of specific immigration rules. For example, completion of the internal market for ED nationals only requires such measures for thirdcountry nationals as are necessary to remove border controls. This implies provisions for short-term visitors' visas but does not require rights to reside and work freely for third-country nationals. Completion of the internal market, in the wider sense of including third-country nationals, requires that they be given rights to reside and work freely in any Member State. On the other hand, employment and industrial policy might require flexible rules on admission of migrants but not secure rights ofresidence. A common migration policy requires only that common rules be adopted on the entry and residence of migrants. It does not inherently require full freedom of movement rights for third -country nationals. However, as noted above, the completion of the internal market for third-country nationals provides the best justification for a common migration policy. Finally, the political goal of equality could be achieved in a limited sense by requiring that there be equal rights internally without conferring any free movement rights on third -country nationals. I will consider the relationship between the wider objectives of migration policy and the specific rules required to achieve those objectives when discussing the recent policy of the Commission.
,(; See Arts. 17-22 EC. There is a large literature on the meaning and scope ofEU citizenship. See S. O'Leary, The Evolving Concept of Community Citizenship (1996); D. O'Keeffe, 'Union Citizenship' in D. O'Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Treaty (1994). 17 Some commentators have said that it adds little of substance to the rights already held under the Treaty and is of symbolic value only. See C. Lyons, 'Citizenship in the Constitution of the European Union: Rhetoric or Reality?' in R. Bellamy (ed.), Constitutionalism, Democracy and Sovereignty: American and European Perspectives (1996). But see the recent decision of the ECJ in Case C-IB4/99, Grzelczyk v Centre Public D'Aide Sociale d'Ottignies-Lowain-la-Newe, 20 September 2001, which appears to conclude that the right of citizenship means that a lawfully resident migrant cannot be subject to discrimination in all situations falling within the scope rationae materiae of EC law. 18 See on this point A. Geddes, 'Immigrant and Ethnic Minorities and the EU's "Democratic Deficit" '(1995) 33 JCMS No.2, 197. 19 Article 6l(b) is unclear on this question.
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A.
THE AMSTERDAM TREATY AMENDMENTS AND COMPETENCE OVER MIGRATION POLICY
When considering the EC treaty, a power usually implies a purpose for which it is to be exercised. 20 To what extent does the new EC competence over migration contained in the Amsterdam Treaty expressly endorse each or any of the above objectives? An examination of the text of the amended EC Treaty reveals that there is scant guidance for the EC institutions as to the purposes of the new competence over immigration beyond completion of the internal market. Completion of the internal market is of course one of the key objectives of the Community explicitly set out in Article 14. This is also one of the activities referred to in Article 3 (l)(c) of the EC Treaty which requires action at EC level in order to establish and maintain the internal market. The treaty gives normative force to EC action on removal of border controls to complete the internal market. The extent to which Article 14 covered third-country nationals at all was always controversial.21 It is clear however that no additional substantive rights for third-country nationals regarding rights of residence or employment are strictly necessary in order to complete the internal market for EU nationals. Moving on to Article 3 (1) (d) we find reference to 'measures concerning the entry and movement of persons as provided for in Title IV'. This was inserted as an addition to the activity set out at (c) above implying that this activity should be viewed as distinct from the internal market objective. Thus it envisages a discrete role for immigration policy separate from the completion of the internal market. However it is noticeable that the provision does not refer to a 'policy' on migration much less a 'common policy' as set out in some of the other parts of Article 3. 22 The rather weak phrase 'measures' is used. This is only employed elsewhere in Article 3 (1) (u) in relation to energy, civil protection and tourism. These are fields in which the Community has not been particularly active and which have not been typified by harmonization at EC level. It is likely that the phrase 'measures' was employed in order to limit the concerns of Member States about the new activity being used to justify the imposition of a 'common policy' upon them. Article 3(1)(d) is also essentially neutral in its wording unlike most of the other activities listed in Article 3 which generally indicate what their purpose is; for example, 'a contribution to the strengthening of consumer protection' or 'the strengthening of economic and social cohesion'. This means that it is impossible to establish from Article 3(1) (d) what its objective is and therefore it is impossible to begin to understand what direction immigration policy
20 This is of course subject to competence being established. The Court ofJustice has ruled that the Community is an institution with attributed competence and cannot act beyond the powers and objectives set out in the EC Treaty. See Germany v. Parliament and Council, Case C-74/99 ECR [2000] 1-8419. 21 See supra n. 11. 22 However now see the emergence of reference to a 'common policy' at infra n. 26.
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should take at EC level. It is striking that there is no reference to the need to establish 'an area of freedom, security and justice' (a phrase found in Article 2 of the ED Treaty) in the paragraph which could have supplied a rationale (even if a rather vague one). This appears again to confirm the contentious nature of the issue and the inability of the Member States to agree on a rationale for EC immigration policy. Turning to Title IV (Articles 61-69), the neutrality of Article 3(I)(d) noted above is repeated. There is no link made between Title IV and the more general aims of the Treaty or even the neutral provision in Article 3(I)(d). The only guidance as to the objective of Title IV is given very briefly in Article 61 which states that:
'In order to establish progressively an area of freedom, security and justice, the Council shall adopt: (aJ ... measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to border controls, asylum and immigration .. .'
By Article 62 such measures must be taken within five years of entry into force. Article 61(b) does however give more direction to policy as it refers to measures 'safeguarding the rights of nationals of third countries'. This appears to be a normative injunction requiring EC policy to seek to protect existing thirdcountry nationals' rights. It does not require such rights to be enhanced and gives no indication of what categories of rights are covered by it. For example, does it only relate to migration rights or does it include civil, social, or family reunion rights? We can see therefore that Title IV does not benefit from any strong overall guiding principles or teleology to direct Community policy on immigration apart from completion of the internal market. This is unusual when compared with most other Treaty powers which give a much clearer normative policy guide to the Community based upon an overall assessment of the policies and objectives set out in Articles 2 and 3, along with consideration of the relevant Title setting out powers of the Community. This reflects the contentious nature of immigration policy. The Amsterdam amendments barely conceal the fact that the purpose of immigration policy is difficult to set out in a manner that attracts general agreement. Beyond completion of the internal market, the Community has little to guide the direction of immigration policy. This said, the very neutrality of the Treaty provisions allows scope for the Community institutions to develop migration policy in a wide range of directions.
III.
Policy Developments in the Council and Commission since Amsterdam
Despite the lack of clear guidance in the Treaty, the institutions of the Community have since then acted to produce a number of proposals as to the appropriate direction of EC migration policy. These documents go some way
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to giving normative substance to Title IV of the Treaty but still do not provide a complete immigration policy. It is important to state that the position of the Council has generally been much more cautious than that of the Commission. There is in fact a dialogue continuing between the two bodies over migration policy.
A. THE VIENNA ACTION PLAN 1998-LITTLE SUBSTANTIVE PROGRESS
In readiness for the entry into force of the Amsterdam Treaty and the new EC competence, the Vienna Council meeting adopted the Vienna Action Plan on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice. 23 This confirmed that the EC must follow the priorities and timetable set out in the Amsterdam Treaty, but that it must also mirror the 'general approach and philosophy inherent in the concept of an "area offreedom, security and justice" '. Building on this concept it stated that 'freedom loses much of its meaning if it cannot be enjoyed in a secure environment and with the full backing of a system of justice in which all Union citizens and residents can have confidence'.24 This is of interest because it acknowledges that 'justice' for non- EC nationals is an object of proper concern for the Community. In discussing the meaning of 'an area of freedom' the plan did not make it clear what kind of 'freedom' this entails and for whom. In concrete terms, as regards immigration, it suggested that priority be given to combating illegal immigration whilst ensuring the integration of migrants legally present. It proposed that within two years of ratification of the Amsterdam treaty (by summer 2001) there would be: measures concerning securing external borders and free movement of persons; visa rules and procedures; and an instrument on the lawful status of legal immigrants. Within five years of entry into force, it was envisaged that there would be (a) measures establishing rules for entry and residence and (b) rules on the rights and conditions under which third-country nationals may change residence from one Member State to another. The plan acknowledges that in respect of the rules on entry/residence and change ofresidence, the Amsterdam Treaty does not require that measures be taken. The Vienna Action Plan did expand modestly upon previous policies but did little to explain the underlying philosophy behind the new Amsterdam Treaty powers regarding immigration. It confirmed the previous tentative plans for harmonization of the rights of resident migrants by the adoption of a measure on this within two years. It also appeared to confirm in principle the desirability of adopting a measure within five years establishing a right for migrants to move to reside in another Member State. There was however no mention of an increase in primary economic migration into the EC.
23
[1999] OJ C019 p. 0001-0015.
24
Ibid., 2.
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B.
THE TAMPERE COUNCIL MEETING OF OCTOBER 1999-THE NEED FOR A COMMON POLICY
The special meeting of the European Council at Tampere was convened specifically to address the new treaty powers and objectives of Title IV of the EC treaty and to consider a more detailed set of proposals for the creation of the area of freedom, security and justice. The Presidency Conclusions are significant for they go beyond the treaty objectives to confirm that the Union must 'develop common policies on asylum and immigration' (emphasis added). 25 This is the first clear Council statement that the objective of Title IV should be to create a common policy in the migration field. 26 This was justified by the need to create an area of 'freedom' for EU nationals but also the Council noted that 'it would be in contradiction with Europe's traditions to deny such freedom to those whose circumstances lead them to justifiably seek access to our territory'.27 The Council continued by saying that 'a common approach must also be developed to ensure the integration into our societies of those third -country nationals who are lawfully resident in the Union'.28 This is however limited to equal treatment within Member States rather than necessarily requiring free movement rights equivalent to EU nationals. The detailed content of the common policy on immigration can be seen as clearly following the framework set out in the 1994 Communication from the Commission. 29 The general thrust is still very much towards restriction of immigration by using external policy instruments to reduce the push factors causing migration and renewing external border control to limit illegal access to EU territory. Alongside this the Tampere meeting confirmed the need for 'fair-treatment' of legally resident third-country nationals. This in practice required that 'the legal status of third-country nationals should be approximated to that of Member States' nationals'. Legal residents should after a period be given rights to education, work and non -discrimination as well as an opportunity to obtain citizenship. Finally, and importantly as regards later developments, the Council accepted harmonization of the conditions for admission and residence of third-country nationals in the light of a shared assessment of the economic and demographic developments with the Union and the situation in the countries of origin.30 The rationale for this need for convergence in the substantive rules for entry and residence was not made clear by the Presidency conclusions but it is likely that it was believed to be essential if the internal market for all residents became a reality.
SN 200/99. 2(; Going beyond the 'measures' mentioned in Art. 3(I)(d). Ibid., 2. This appears to be a reference to asylum seekers rather than to migrants more generally. It should thus not be viewed as acknowledging a need for parity of treatment between EC nationals and migrants as regards matters protected by EC law. 2" Ibid., 2. 2" COM (1994) 23 final. 30 Supra n. 25, at 4.
2"
27
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As discussed above in section II, the case for including third-country migrants in the completion of the internal market is quite strong on both economic, social and political grounds. This entails granting them nondiscrimination rights vis avis nationals but also economic rights of movement and residence between EC states. Once this case is accepted then thirdcountry nationals could eventually move to whichever state they wished, subject to being economically active. In this situation, it would not be possible to maintain divergent rules as to the admission of long-term migrants. Any divergence in admission rules would be undermined by migrants moving within the EU after gaining admission through more generous Member States. This may be the underlying reasoning behind the Tampere declaration of the need for common entry rules.
C. THE PROPOSAL FOR A DIRECTIVE ON THE RIGHT TO FAMILY IMMIGRATION' POLICY
REUNIFICATION: THE BEGINNING OF THE END OF THE 'ZERO
In response to the Tampere meeting the Commission drafted a Directive on family reunification 31 which illustrated the beginning of a more liberal approach to economic migration in general. The Commission confirmed that 'the zero immigration mentioned in past Community discussion ofimmigration was never realistic and never really justified'.32 It went on to state that although the liberal policy of the 1950s could not be revisited 'the unemployment rate is not the only factor underlying immigration policy: specific sectors of business activity may well be short of skilled and qualified staff. More generally, a common immigration policy at European level will need to be flexible so that it can reflect the manifold dimensions of migratory flows, be they economic, social, cultural or historical, relating both to the host countries and to countries of origin'.33 This statement marks a significant moment in Commission policy on immigration, signalling the demise of the previous zero immigration stance. Interestingly this change occurred despite persistent unemployment in the EU which had hitherto been the main obstacle to the liberalizing of policy. The ostensible justification for the Directive rests upon the Tampere objective of fair treatment for third-country nationals. However the need for harmonization is also stated to be two- fold: (a) third -country nationals are to be treated the same whichever country of residence they adopt; and (b) because 'the possibility that the choice of Member State in which a third-country national decides to reside will be based on the more generous terms offered there must be restricted'.34
31
COM (1999) 638 final.
32
Ibid., 2.
33
Ibid., 3.
34
Ibid., 9.
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The latter point is again an endorsement of the common migration policy objective for migration with its emphasis on the need to remove any competHive advantage resulting from national migration policy differences. Communication (2000) 757 and the Proposed New Direction ofEC Policy-controlled Economic Migration
IV.
Following the Tampere Council meeting, it was left to the Commission to develop the outline of a common immigration policy. The outcome was the Communication from the Commission to the Council and the European Parliament on a Community immigration policy.35 This Communication offers a very different vision for European Union immigration policy from any statement produced previously by the Community institutions. The main thrust of the Communication's view is that from 'an analysis of the economic and demographic context of the Union and of the countries of origin, that there is a growing recognition that the "zero" immigration policies of the past 30 years are no longer appropriate'.36 The Commission, whilst acknowledging the need for a process of consultation with Member States, is clear that 'channels for legal immigration to the Union should now be made available to labour migrants'.37 Furthermore, the Commission asserts that this will require the adoption of a comprehensive set of Community policies regarding visas, residence permits, human rights, illegal entry, asylum and humanitarian policy, research, integration of migrants and liaison with countries of origin. In short, the Commission is taking the new competence under Title IV extremely seriously by adopting a broad view of the purpose of these powers. In justifying the new policy, the Commission refer to the increasing problem of racism and xenophobia in Europe which is particularly directed towards migrants and asylum seekers. Attention is also drawn to growing political and public concern about Europe's skill shortages and an ageing population. The Commission appear to believe that a radical new strategy is one that might find acceptance from the Member States in the light of these new circumstances.
A. THE TAMPERE REMIT
In the Communication, the Commission seek to follow the Tampere remit but it is fair to say that the Council had given only very limited guidance for future immigration policy being mainly directed to asylum issues. However, some of the guidelines from the Tampere meeting merit particular consideration in the Communication. The Council stressed the need for partnership with countries of origin. The Communication tackles this issue by considering the impact of
35
COM (2000) 757 final.
3G
Ibid., 2.
37
Ibid.
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its proposal for large-scale economic (non-asylum) immigration into the EC on the countries supplying these migrants. The drain of skilled labour is 'likely to grow as shortages in Europe and other parts of the developed world in certain highly skilled sectors, together with important wage differentials, continue to attract qualified people from the developing world to emigrate'.38 The Commission propose to mitigate this negative effect by encouraging migrants to maintain and develop their links with their mother country. This would include protecting their legal rights to visit their home without losing their resident or employment status in the EC. The Commission also note that it must ensure that the development of countries of origin is promoted, thereby reducing the incentive to migrate. Thus the Commission acknowledge two dimensions of the globalization of the labour force-both the need to compete to attract such workers but also the negative effects this may have on developing countries. The palliative suggested, however, is likely to prove inadequate. The possibility of visiting the countries of origin, even for long spells, will not adequately compensate developing states for the loss of their skilled workers. In the Communication the Commission blames the restrictive EU policy on economic migration for the rise in false asylum claims. This is clearly directed at meeting the Tampere Council's heavy emphasis on the priority of asylum policy. The Commission believes that by increasing the options for economic migrants the asylum system will suffer less abuse. There is clearly intuitive force in this view although it is untested by evidence. Economic migrants who were admitted lawfully would not have to pay illegal traffickers to enter the EU, but others who did not qualify for entry might still be willing and able to do so. The Tampere Council importantly also stated that there should be 'fair treatment' for third-country nationals. The Commission builds on this by asserting that this requires 'steps to ensure that migrants benefit from comparable living and working conditions to those of nationals'. 39 It is argued that this is necessaryto do so in order to attract legal migrants to the EU. Finally, allowing free movement for third-country long-term residents on the same basis as EU national enjoy could contribute to labour market mobility in the Union. 4o In this regard the Communication suggests adoption of a package of measures including the pre-existing proposals on social security and family rights41 and improvements in the position of long-term residents as regards loss of status, protection from expulsion and residence in other Member States. It is also asserts that the Charter of Fundamental Rights will apply to migrants and give them a number of social rights. At the moment the legal status of the Charter for EU nationals remains in doubt. 42 However assuming the
COM (2000) 757 final, 3. :,,' Ibid., 13. ~o Supra n. 29, 7. The proposals from the Commission in relation to improving the status of third-country nationals in relation to social security (amending Regulation 1408171) COM (97) 561 and as familymembers ofEC nationals (amending Regulation 1612/68) COM (98) 394. ~2 See for example the comments by Advocate General Tizzano in Case C-173/99, R v. Secretary of State for Trade and Industry ex p Broadcasting, Entertainment, Cinematographic and Theatre Union, 26 June 2001. These views were not taken up by the Court which dealt with the case on another basis.
:lB 41
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Charter is declarative of legal rights, it should be held to apply to non-EU nationals in the same way that, for example, EC sex discrimination law applies to those from outside the EU. There appears to be no reason why the rights enunciated in the Charter should not protect non-EU nationals to the extent that they have legal effects. We can see here a complex set of purposes behind these proposals; the need to confer rights upon migrants is clearly linked to improvement in labour mobility and thus follows traditional EC economic thinking on the internal market. It also reflects the demands of competition on the global labour market. But it is also clear that there is a recognition of the independent value of such rights. In addition, the wider political context of racism and the need for integration of migrants are also influential factors dictating policy. These are policies inherently much removed from the traditional market-making logic of much EC policy hitherto. As such they are inherently more controversial and less likely to be capable of generating consensus amongst Member States.
B. PRIMARY ECONOMIC MIGRATION NEEDED
The primary justification for greater inward migration is, as stated above, based upon demographic and skills shortages identified by the Commission. Furthermore, however the Commission note that the current restrictive policy 'allows no adequate response to labour market conditions and plays into the hands of well-organised traffickers and unscrupulous employers'.43 The Commission are here connecting migration policy to the need to protect EC national workers from being undercut by illegal entrants. There is force in the argument that only by giving migrants legal status and equal labour rights can this practice be reduced. This also promotes achievement of the Community's other employment strategies by promoting the protection of workers' rights. Turning to the sensitive question of the volume of primary immigration the Commission suggests that it is necessary to re-assess EU labour needs and to set a policy for admission of migrants to fill gaps identified in a 'gradual and controlled way'.44 This would involve not a replacement migration policy but rather a controlled approach based upon a common assessment of the economic and demographic development of the Union. 45 The Commission recognize that, whilst there are overall trends at EC level, there is also much diversity within Member States around issues such as reception capacity for immigrants, labour market needs and links with countries of origin. Therefore it suggests that the favoured approach would be to 'establish an overall framework at EC level, with common standards and procedures and a mechanism for setting objectives and indicative targets, within which Member States would develop and implement national policies'.46 These would not amount to detailed European targets but rather would follow the form of national
43
Ibid., 9.
44
Ibid.
45
Ibid., 10.
46
Ibid., 11.
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guidelines following consultation. The Council would then be asked to lay down principles for the common immigration policy to be adopted over a set period. In order to alleviate concern that the EC's existing labour policies are being sacrificed in favour of economic migration, it is confirmed the new immigration policy should be without prejudice to the structural reforms of the European Employment Strategy which are directed at increasing the labour supply from within the EU itself.47 The Commission therefore envisage monitoring the progress made in achieving the objectives of the migration policy and its effect on the labour market in the EC as well as countries of origin. The suggested policy therefore gives a high degree of emphasis on national needs as opposed to a single EU -wide approach. Despite this endorsement of national migration policies, the Commission remains committed to further improvement in the functioning of the EU labour market by promoting greater mobility between Member States for incoming migrants. This implies granting non-EU migrants a right to seek and take up employment throughout the EU rather than within one Member State alone. The difficulty not addressed by the Commission is the acknowledged need for different migration volumes at the national level, which militates against any policy of granting further rights of residence to third-country nationals. Whilst completion of the internal market, flexibility and fair treatment point to a right for non-EU nationals to change their Member State of residence and employment, this would undermine the national quotas and targets which the Commission contemplates. It is difficult to see a reconciliation of these two competing policy goals. The objective of securing equal treatment for long-term resident migrants appears to clash with the desire to set targets for new inward migration for individual Member States.
C. MIGRANTS' SUBSTANTIVE AND PROCEDURAL RIGHTS
The Commission propose that individual applications from migrants would be assessed according to transparent and objective criteria and their rights would be differentiated according to their length of stay. However the Commission considers that 'a hard-core of rights should be available to migrants on their arrival in order to promote their successful integration into society'.48 These progressive statuses would generally commence with a temporary work permit which is renewable on certain conditions being met. This would be followed by a permanent work permit after a defined period. Finally a migrant would acquire long- term resident status after a further period. This mirrors the approach taken under the EC-Turkey Co-operation Agreement in which rights increase with the length of lawful residence. 49 The idea of the
See n. 77. 1" Ibid., 13. This agreement gives increasing rights to workers both as regards security of residence and freedom to change jobs as the duration of their lawful residence increases. See in particular Arts. 6 and 7 of Decision Number 1/80 of the Association Council in which a right to change employer
~7
49
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acquisition of rights by stages appeals to the Commission's concerns about ensuring that migrants are accepted by their communities and that they demonstrate their commitment to their new abodes. An alternative view is however that a too lengthy period of insecurity for migrants may inhibit integration rather than promote it. The scheme proposed by the Commission seeks to balance the need to have a flexible policy sensitive to economic and social conditions against the need to guarantee the rights of third-country nationals. This guarantee is based both upon the pragmatic desire to make the ED an attractive choice for migrants as well as the inherent moral value of such rights and the need to integrate migrants. However the very flexibility the Commission advocates may cut across the protection of such rights. Thus the Commission acknowledge that 'public acceptance' may be a factor in setting targets for migration. If perceived hostility to migrants leads to (a) reductions in admissions or even (b) the loss ofrights to, for example, family reunion or long-term residence, the goals of integration and protection of rights will be undermined. The ED's commitment to migrants' rights and integration will be undermined if the policy is too flexible in the face of alleged hostility. This will undermine the ED's status as a destination within the global labour market. As regards the actual test for admission of migrants the Commission appears to have been rather too cautious by suggesting that individual employers need to demonstrate that there is a shortage on the EC labour market. The Commission suggest that the 'economic needs test' should be deemed to be met if a vacancy has been advertised unsuccessfully through the employment services of several Member States for a defined period. This imposes the economic cost of the migration procedure upon individual employers. This may be too costly and cumbersome to be attractive. Certain classes of skilled workers already benefit from favourable treatment under national law in many Member States. 50 But migration for most workers, particularly those that are unskilled, has been limited. The test proposed by the Commission would do little to address the labour shortages it purports to remedy. A system of quotas for different categories of workers or those with different skills would have been a bolder and more effective approach. In conclusion, the Communication confirms that 'while immigration will never be a solution in itself to the problems of the labour market, migrants can make a positive contribution to the labour market, to economic growth and to the sustainability of social protection systems'. 51 This confirms the Commission's view that migration may be an important factor in the future success of the ED economy.
within the same occupation is accrued after three years' lawful residence. A right to take up any occupation accrues after four years' lawful employment. 50 See for example the special treatment of nurses and certain information technology workers in the UK by immigration authorities. 51 Supra, n. 35.
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V.
Following Through on the Policies of Communication (2000) 757
Following the framework set out in the Communication, the Commission has now produced a proposal on the status of long- term residents and also some proposals for migration as part of the employment strategy of the EU. These measures both illustrate the new approach to economic migration.
A. THE COMMISSION'S PROPOSED DIRECTIVE ON LONG-TERM RESIDENTS: TOWARDS EQUALITY
The draft Directive on the status of third-country nationals who are long-term residents, 52 whilst setting out an uncontroversial set of equal treatment entitlements,53 is particularly significant because it includes a right for a legally resident migrant worker to change their Member State of residence and employment. This was not mentioned in the Tampere conclusions and marks a return to the proposal put forward in the 1997 Convention on the admission of third -country nationals. 54 The explanatory statement says that 'a genuine area of freedom, security and justice, a fundamental objective of the European Union, is unthinkable without a degree of mobility for third-country nationals residing there legally, and particularly for those residing on a long-term basis'.55 To this end the Commission considers that Article 63(4) of the EC treaty should be implemented. The present position is acknowledged to be discriminatory in that EC nationals have the right to reside throughout the Union. In addition this situation 'does not match the demands of an employment market this is in a process of far-reaching change, where greater flexibility is needed'.56 The paper continues by noting that third-country nationals may be ready to relocate in order to fill employment shortages in the Union. Furthermore, with Member States seeking to attract specialist labour, the acquisition of a right to reside in any Member State 'will make the prospect of settling in the European Union on a long-term basis all the more attractive'. These comments illustrate some of the new thinking on migration into the Union: the need to fill labour and skill shortages, international competition for labour and equal treatment of migrants.
COM (2001) 127 final. "" See K. Groenendijk, E. Guild and R. Barzilay, The Legal Status of Third-country nationals who are Long-term Residents in a Member State of the European Union (2000). Interestingly, the Commission had commissioned this report on the rights provided to long-term migrants throughout the Union, which showed that there was a large degree of convergence. This was even the case in relation to citizenship entitlement, which has hitherto been seen as an area with wide differences between Member States. Therefore the prospect of securing agreement on an EC measure which reflects existing practice appears to be relatively good. 54 See the discussion above at p. 4. 55 Supra n. 52, 8. 56 Ibid., 9.
52
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B.
FULFILLING THE LISBON AGENDA-MIGRATION TO PROMOTE A KNOWLEDGE-BASED EU ECONOMY
The March 2000 Lisbon meeting of the European Council had been ostensibly concerned with non-immigration issues, focusing upon concerns about the competitiveness of the EC economy and its ability to deliver continued economic growth. The Presidency Conclusions 57 defined set a new strategic goal for the EC 'to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion'. The Conclusions set out the evidence of a growing skills and labour shortage in the EC. It also confirmed that the labour market was still not able to provide enough workers and called for renewed training and increases in the employment rate of the population. It also noted the danger for welfare systems caused by demographic shifts towards an older population. These conclusions, although not concerning immigration directly, all give further support to the analysis of the Commission regarding the liberalization of economic migration. The Commission responded to the Lisbon Council with a Communication 58 aimed at implementing the strategy outlined in Lisbon. This was prepared in readiness for the European Council meeting in Stockholm in March 2001. Some significant policies suggested by the Commission related to economic migration into the Union. For example, it notes that 'New European labour markets are emerging against the background of globalization and the knowledge economy. This reflects the fact that it is becoming increasingly common for people to take advantage of the internal market to live and work in different Member States. It is a very concrete example of European integration'. 59 In this regard the Commission suggest policies to increase this process to make it 'easier for skills to be transferred across borders and for the supply of skilled labour to be matched better to demand'.60 Clearly the creation of a right of economic migration for resident third-country nationals could be an aspect of such a new labour market. Furthermore, in relation to the EC skills gaps in relation to information technology, the link with migration is made explicit when the Commission suggests, as a short-term solution, opening Europe's doors more widely to skilled and talented people from other countries. It suggests that this should be done within the framework of a common immigration policy which recognizes the need to maximize the benefits of economic migration to the Member States, to the countries of origin and to the migrants themselves. 61 This would require a policy of identifying skill needs and how far they can be met from a more open immigration policy. So here we can see the Commission utilizing the agenda laid down by the Council at Lisbon to attempt to find further support for the new position on migration. This is again part of the ongoing debate
57
59
See EUROPA website for the text: www.europa.eu.int.
51l
COM (2001) 79 final.
Ibid., 7.
GO
Ibid.
61
Ibid.
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between the European Council and the Commission over the extent to which liberalization is desirable in this field.
C. THE DRAFT DIRECTIVE ON ENTRY AND RESIDENCE FOR ECONOMIC ACTIVITIES
In order to implement the new policy on primary migration, in 2001 the Commission published a draft Directive setting out the criteria by which new economic migration into the ED would be determined. 62 It is proposed that migrants will be admitted if there is no suitable applicant in the short-term from within the ED or the candidate countries for accession. 63 However employers will be deemed to have demonstrated this shortage by advertising the post unsuccessfully through the employment services of several Member States for four weeks. Individual migrants should then be granted entry to work on fulfilment of certain pre-conditions, most important of which are demonstration that they have a contract of employment and sufficient resources to avoid becoming a burden on the Member State. 64 Rather importantly for lower paid workers, migrants must also have sickness insurance covering all risks. This requirement is no doubt modelled on the same provision in Directive 90/364 on the general right of residence for ED nationals; but that Directive concerns those who are not economically active in contrast to the position of non-ED migrant workers. This could be a serious impediment to migration unless employers were prepared to pay for it as part of the remuneration offered to employees. 65 Significantly, in relation to rights of entry, the proposal makes no distinction between categories of worker, skilled or unskilled. In principle this would lead to essentially market-led inward migration, freed from the constraints of immigration controls. However the draft Directive is equivocal on the residual capacity of Member States to deny entry to migrants who meet the above requirements. There is no reference to a right to enter but only to the application process. 66 The application must be accompanied by the evidence discussed above but thereafter it is unclear whether a permit must be granted or whether this merely gives rise to a discretion in the Member State to do so. It is suggested that the Court ofJustice might well adopt a rights-based approach to such a provision based upon its wide approach to direct effect.67
(;2 COM (2001) 386. Proposal for a Council Directive on the conditions of entry and residence of third -country nationals for the purpose of paid employment and self-employed economic activities. (n Supra n. 62, Art. 6.This includes long-term resident third-country nationals who would benefit from the free movement provisions entailed by the Commission's proposed Directive on their status. (;1 Supra n. 62, Art. 5. 65 But note supra n. 62, Art. 11 (f) (iv) , which by contrast also states that migrants should have equal rights to social security, including health care, as EU citizens. This would appear to undermine the requirement for the migrant to have their own sickness insurance in place prior to their arrival. (;(; Supra n. 62, Art. 5. 67 See cases such as Case 41/74, VanDuyn v. Home Office [1974] ECR 1337; Case 43/75, Defrenne v. Sabena [1976] ECR 455 and Case C-128/92, Banks [1994] ECR 1-1209 at 1237 (per Advocate General van Gerven).
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Reflecting the concern of the Commission to allow migrants a graduated set of rights the draft Directive states that the initial residence permit should be valid for three years. 68 During this initial period the worker would be confined to the exercise of 'specific professional activities or fields of activities'.69 This proposal is more liberal than one confining the worker to a particular employer but prevents migrants from switching between widely divergent activities. This would undermine labour market flexibility but is clearly aimed at protecting domestic workers from competition by migrants in fields that Member States deem 'off-limits'. The imposition of such conditions would be left to Member State discretion rather than be determined at ED level. However the ability of Member States to control the cross-over of migrants into certain sectors would be limited to the extent that fresh migrants would have rights to enter and work in such fields if employers could satisfy the labour shortage test set out above. This reflects the tension between marketled migration and Member State control which is central to the Commission's proposals. A worker seeking renewal of a three-year permit must apparently70 continue to show that their employer is unable to recruit from ED residents 7l into the post in the short-term. This would introduce a real element of uncertainty for migrants as to their long-term security in the ED because changes in the economic conditions within their field of employment might result in their expulsion. Workers who have held a residence permit for more than three years would move onto the next level of security in terms of rights. They would not have to show that there was still a labour shortage in order to obtain an extension of their permit. 72 Further they would be entitled to move freely between professions. 73 They would however still have to show that they were employed in order to obtain further extensions. The Commission have followed the EC-Turkish Association Agreement in choosing three years as the critical date for elevation of workers' rights. 74 This does have the virtue of consistency but for some, particularly skilled migrants, lack of security during the first three years might undermine their willingness to choose the ED as a destination. 75 The draft Directive represents a balanced attempt to achieve some of the objectives of the Commission's new migration policy. To the extent that it proposes a right to migrate to the ED based upon a clear test of shortage on the labour market, it would, if implemented, represent a huge liberalization in ED migration policy.
Supra n. 62, Art. 7. "" Supra n. 62, Art. 9. Ibid., Art. 7 is somewhat equivocal on this point, merely stating that after three years with a residence permit a migrant would no longer have to demonstrate this. 71 In addition, candidate country nationals and resident non -EU nationals are included. 72 Supra n. 62, Art. 7(2). 7:l Supra n. 62, Art. 8. 7~ Supra, n. 49. 75 The exception to this might be intra-corporate transferees who are dealt with separately in Art. 14 and are entitled to a five-year permit at first instance to reflect tlIe particular need to facilitate their movement.
(;II
70
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VI. The Need for Primary Economic Migration: A Failure of EC Employment Strategy? Communication (2000) 757 on a Community Immigration Policy builds on previous policy in relation to third-country nationals in the areas of integration and rights for long-term residents; but it does represent a new approach to primary economic migration, arguing for large-scale liberalization. The justifications offered are primarily related to demographic and labour market trends which are imposing constraints on the level of EU economic growth. These trends are not entirely new but had hitherto not attracted a migrationbased solution. In this connection, it is of interest to note that the Communication was presented jointly by the Commissioners for Directorate General Justice and Home Affairs and Directorate General Employment. As is usual, it represents the collegiate view of the whole Commission but there has been particular consultation with Directorates General Employment, Social Affairs and Trade. 76 Previously the EC strategy in this area was to use employment and enterprise policies in order to meet the needs of the labour market. 77 The European Employment Strategy includes improving 'employability' as one of its key objectives. Thus its aim is to increase the supply of skills and workers available to industry by various employment and training policies. The rate of unemployment within the EU has remained high and yet labour shortages are being felt-particularly in centres of economic and technological growth. This reflects factors such as lack of skills, regional industrial decline, geographic particularities and the structure of the welfare state. The solution to such unemployment has raised politically challenging questions for all Member States because it forces reconsideration of social security systems and other collectivist policies. The EC does not have competence over domestic welfare systems 78 and has relied on regional and industrial policy to tackle this structural unemployment. The fact that the Communication acknowledges the need for primary economic migration to tackle labour shortages signals a recognition that the present internal EC employment strategy cannot meet these supply shortages. This is significant because it is the first time since the immigration of the 1960s that it has been seriously suggested that economic migration should be pursued as a labour market strategy. The unemployment of the 1970s led to an almost total barrier to economic migrants into Europe as Member States
7(; This was confirmed in correspondence to the author from Directorate General Justice and Home Affairs by Ms. S. Pratt. 77 See now for example the European Employment Strategy and the National Action Plans on Employment which is the latest policy on employment. The most recent document is the Council Decision of 19 January 2001 on Guidelines for Member States' Employment Policies for the Year 2001, COM (2001) 63 final. 7B Ibid. See the exhortations to Member States to review their social security systems to see if they can be reformed to encourage the supply of labour.
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sought to reserve jobs for nationals. The Commission's adoption of migration as a solution is indicative of, among other difficulties, the problem of trying to recast Europe's welfare systems to promote job creation. It is clearly extremely difficult to secure harmonization on such matters, particularly when the ED only has the power of exhortation in these fields. However immigration itself is an issue of great sensitivity and the question of whether it, too, will meet such resistance from Member States will be examined below. The Constraints of EC Policy-making-The Limits of Instrumentalism
VII.
It is apparent from the Communication that there are now perceived to be a number of constraints which mean that an EC immigration policy cannot be purely instrumental in serving the economic, demographic and social needs of the Community. This is in contrast to European Member States' policymaking in the past, which has viewed immigration in largely pragmatic terms. A number of these new constraints can be set out:
No Return to a Guest-worker System: Fair Treatment for Third-country Nationals The system of guest -worker permits employed by some Member States in the past was largely discredited because it did not respect even basic rights of migrants. Migrants were treated in purely instrumental terms as units of production. 79 The Commission seek to make clear that there cannot be an EC policy based on this type of model. Migrants must be given basic rights both regarding security of residence and also equal treatment. These can be graded according to the length of stay in the ED but the basic goal should be to grant approximate equality with nationals. As noted above, equality in employment is also important in order to protect ED nationals from unfair competition from migrant workers. Thus terms of the employment conditions of migrants must be equal to the national minimum standards and equivalent to domestic workers engaged in like work. In addition, the Commission recognize that the repatriation of legal migrants, even if desirable on economic grounds in times of recession, is practically difficult, quite apart from the human rights concerns set out below. The Court ofJustice has developed a body of case law relating to EU national workers which goes beyond an instrumental view of them as purely units of production. Thus in a number of cases, the Court has protected from expulsion migrants who were not viewed as sufficiently 'productive' by the Member
(i)
79 By contrast see the developing case law of the ECJ in relation to Turkish workers, which has given them protection against expulsion on economic grounds in a number of cases. Case C-l/97, Birden v. Stadtgemeinde Bremen, [1998] ECR 1-7747.
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States in which they were resident. 80 The Court has also taken a restrictive view of the power of Member States to deport EU nationals on public policy grounds. 81 Most rights are accrued by EU nationals regardless of their period of residence in their new Member State. However, even in relation to EU nationals the court has developed a concept of a 'quasi-worker' who may enjoy only some of the rights of a 'full-worker'.82 Similarly the proposals from the Commission would not grant the full range of rights to non-EU migrants immediately upon arrival. Rather they attempt to reflect the concern to grant migrants enhanced security of residence by adopting a graduated approach based upon length of residence.
(ii) International Ethics of Development The Community must respect the development needs of developing countries in its migration policy. The Community has its own policy to promote such development. 83 These include arrangements for the training of skilled workers. Bilateral agreements often specify that students must return to their own countries at the end of their training. 84 Encouraging permanent inward migration into the EU could undermine some of these policies. The Communication therefore notes that skilled workers who have been the beneficiaries of extensive support from their countries should not simply be lost to those economies. The Commission suggest that it is important to try to encourage these skilled workers to maintain contact with their home-countries and to perhaps return there in due course. This may however be difficult to achieve in practice and it is doubtful whether such measures will significantly mitigate the negative effects of emigration upon developing countries. (iii) Globalization of the Labour Market Particularly in the market for skilled labour, there is now a growing level of competition in the global marketplace for such workers. To the extent that the legal rights offered to migrants by different states represent one of the factors influencing workers in their migration choices, the EC must compete with other developed nations. Thus the Commission impliedly indicate that migrants must be offered a package of rights which renders the EC an attractive choice for migration. In the Commission's view, the internal market could represent a real incentive for migrants to come to the EU if they were allowed access to it through free economic movement and residence rights. But in addition, they must be given equal treatment in employment and social rights
80 See for example Case C-292/89, R v. ImmigrationAppeallribunal ex pAntonissen [1991] ECR 1-745, Case 53/81, Levin v. Staatsecretaris van!ustitie [1982] ECR 1035 and Case 196/87, Steymann v. Staatsecretaris van!ustitie [1988] ECR 6159. III See Case 67174, Bonsignore [1975] ECR 297. 82 See Case C-197 /86, Brown [1988] ECRI-3205, in which a worker who applied for a grant to study shortly after his arrival was held not to be entitled to an equal right to receive this as nationals. 83 For a summary of EU development policy see G. Glocker, L. Junius, G. Scappucci, S. U sherwood and J. Vassallo, Guide to EU Policies (1998). 84 See the Euro-Mediterranean Partnership of 1995.
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and rights to family reunion. The degree of improvement in the position of a migrant worker that would be necessary to attract workers is clearly difficult to state with precision. The influences upon migrants' choices of destination comprise a mixture of factors: wages differentials, ease of entry, security of residence, citizenship rights, cultural connections and so on. Isolating the influence of legal as opposed to economic elements is likely to be a fruitless search. The Commission is however no doubt seeking to approximate the generous rights available to migrants to North America as a major economic bloc competing with the EU. However it should be noted that the equality rights to be offered to new migrants under the draft Directive are not as generous as those offered to EUnational migrants. For example there is no equivalent to the provision in Regulation 1612/68 Article 7(2) granting equal 'social advantages' to non-EU migrants. The draft Directive in Article 11 lists a number of fields in which equality should be protected but this is exhaustive. This might not allow the Court ofJustice to build a body of equality law as generous as it has done under Regulation 1612/68. The approach of the Court to that provision has been to suggest that practically any benefit accorded by national law by virtue of the residence of a worker may fall under Article 7 (2).85
(iu) Racism and Integration The persistent problem of racism towards ethnic minorities is of particular relevance to EC immigration policy. The Communication makes clear that the implications of increased economic migration for race relations are a major constraint on any proposed action. Acceptance of further migration by host societies depends upon efforts to ensure that racist hostility is not allowed to flourish. The Commission rely heavily upon the new Article 13 power in the EC Treaty to pass measures to combat this. In 2000 the two Directives 86 on antiracism were passed, which must be implemented in 2003. Furthermore, to further assist in resisting racism, integration of migrants must be fostered through equal rights and security of residence. The Commission also mention the responsibilities of migrants to respect the values of European culture in order to facilitate this integration. This last point is clearly controversial and it is not clear whether this is merely referring to respect for the laws of the Member State of residence or it requires adopting the culture in the EU in some wider sense. The latter would be impossible to define or police. The involvement of the EC in such a controversial aspect of policy, given the divergent concepts of'European culture', appears misconceived. Nevertheless the broader issue of the emergence of a competence under Article 13 EC has without doubt added a new consideration to the Commission's thinking on migration issues.
85
See for example Case 32/75, Fiorini v. SNCF [1975] ECR 1085 and Case 207/78, Ministere Directives 2000/43 and Directive 2000/78.
Public v. Even [1979] ECR 2019.

86
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(v) International Law: Human Rights and Migration Law Norms There are a number of international legal instruments that concern directly or indirectly the rights of migrant workers.87 None of these has been signed by the EC and only some have been ratified by Member States. This formal position however is certainly misleading because many of the instruments have a high status internationally and do represent a strong ethical constraint on EC policy. Indeed the Commission has urged Member States to ratify the 1990 UN Convention on migrant workers.88 It is interesting to note that the Commission's proposed harmonization of the rights of migrant workers might give effect to some of the obligations contained in this Convention despite Member States reluctance to ratify it; for example, Article 43 of the Convention, which gives migrant workers a right to equal treatment in respect of access to education, housing and health-care. The draft Directive on economic migration in Article 11 contains an equality clause of equivalent breadth. This would be an interesting example of the binding of Member States to a norm of international law through the medium of an EC measure.
VIII.
Evaluation of the New Approach: Are the Objectives Achievable?
The Communication sets out a bold new approach far removed from the substance of previous Commission and Council policy on migration. How feasible is the policy given the controversial and complex nature of immigration control? There are two principal obstacles to realizing the aims of the policy.
A. ENLARGEMENT OF THE UNION AND THE NEW LABOUR MARKET
The proposed expansion of the Union to total possibly 28 members is likely to have a significant impact on the perception of the Community's migration needs. The Treaty of Nice has set in place the new institutional structure to accommodate the new members of the Union with the first accessions scheduled to take place in 2003-4. The potential new members of the Union all have substantially lower GNP per head than even the poorest EC Member States. There is therefore concern that, without transitional measures, there will be large-scale movement of labour from the new Member States to the existing ones. This would put great strain on social and economic conditions in the long-standing Member States. Therefore some Member States have already
87 Of particular significance is the 1990 United Nationals-sponsored multilateral treaty the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. See also ILO Convention No.143 concerning Migrations in Abusive Conditions and the Promoting of Equality of Opportunity and Treatment of Migrant Workers. For full details of all the important instruments regulating migrant workers see R. Plender, Basic Documents on International Migration Law (1997). 88 Supra n. 29.
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demanded that upon accession there be a time-delay before the free movement of persons elements of the acquis communautaire become binding. The current plan is for there to be a period of seven years before nationals of the new Member States acquire full free movement rights. With this large expansion of the available labour force it is unlikely that Member States will accept the need for a further liberalization of economic migration from outside the expanded Union. Set against this however is the fact that the potential new members are also experiencing similar trends to those identified by the Commission as affecting the current Member States. They therefore may have their own need for extra labour and certainly may not have a large surplus able to or willing to move to the more prosperous parts of the Union. Economic analysis also supports this view. 89 In addition the evidence of previous accessions by poorer states, such as Portugal and Greece, has been that there was not the large scale migration predicted to result from economic pull factors. 9o The pattern may be the same with regard to the former Soviet countries. This may mean that the Commission's views on the need for economic migration are still vindicated. There is also some economic modelling analysis ofmigration patterns that indicate that differentials in wages levels and other factors will not lead to large-scale migration upon enlargement. However in the context of Member State fears about enlargement, even if arguably unfounded, the prospects of a more liberal migration policy appear to be remote.
B. MEMBER STATE RESISTANCE TO LIBERALIZATION
As noted above, the power of the Community under Title IV is limited. There is a requirement for unanimity to take measures under Articles 62-65 Ee. This means that policy-making will be extremely difficult in relation to controversial measures which threaten powers perceived as closely connected with the Member States' sovereign rights. The entry and residence of economic migrants touches on such perceived rights. In addition, Member State control over national labour markets, another controversial field, would be undermined by the Commission's plans. Third-country national migration from both outside the EC and from other EC countries, as proposed in the Communication, would represent a vast erosion of Member States' formal legal control over these matters. It appears unlikely that Member States will be willing to cede this power to a liberalizing EC regime. They appear more likely to rely on ad hoc national responses to any labour or skills shortages they experience, as indeed is occurring at present. The fact that national situations vary greatly across the Member States adds further weight to this. Uniformity at EC level would appear to be in opposition to particular national responses to meet national needs. This said, the extent to which EC norms on migration
"" See T. Boeri and H. Brucker, The Impact of Eastern Enlargement on the Employment and Labour Markets in the EU Member States (2000). "0 See for an economic model of migration G. Bargas. 'Economic Research on the Determinants of Immigration: Lessons far the European Union' (2000) World Bank Technical Papers No. 438.
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would pre-empt the retention of national discretion is unclear. Weatherill has argued that, at least in relation to free movement of goods, the classic doctrine of pre-emption is no longer necessary or desirable. 91 The draft Directives prepared by the Commission are silent on the question. It is arguable that express words would be required to remove the right of Member States to admit migrants on more favourable terms than those contained in the proposed EC rules. However, the existence of EC rules would generally preclude the application of less favourable national rules to migrants. 92 However this picture of formal national control over immigration is subject to effective limitations such that Member States in practice cannot control migration by means of domestic law alone. Some of these constraints have already been mentioned above in relation to illegal migration and asylum, which are supranational issues incapable of resolution by national authorities. Because of this, Member States may see that there is a need to address some of these broader issues at Community level. For example, the emphasis on cooperation with countries of origin is certainly best pursued through EC action. However, more controversial issues like supra-national control over the criteria for entry by third-country nationals to the labour market does not appear to offer the same advantages for Member States. This is unsurprising given the recent history of hostility toward economic migration in Europe, despite the fact that economic theory indicates that free trade in labour should maximize wealth for all participants in the system. The depth of resistance on the part of Member States has been born out since the Commission's new policy was launched. In 2001 during the terms of the Swedish and Belgian Presidencies there was no progress in implementing the legislative and other policy measures proposed by the Commission to give effect to a more liberal migration policy.93 This was despite the introduction by the Commission of a strong policy aimed at preventing illegal immigration as
"' S. Weatherill, 'Beyond preemption? Shared competence and constitutional change in the European Community' in D. O'Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Yreaty (1994). He argues that in relation to environmental and consumer protection standards Member States have acquired more discretion to raise standards, with EC law merely setting the floor below which norms may not fall. Could similar reasoning justify national authorities retaining discretion over migration rules, subject to compliance with an EC minimum standard? I suggest that this would be problematic because migration policy is unlike product standards rules aimed at, for example, consumer protection. This is principally because the adoption by one Member State of a more generous approach to migration than the EC minimum would have effects on all Member States because this would facilitate migration into the EU as a whole, particularly iflong-term residents are able to move between Member States. The consequences of the more liberal policy of one Member State could not be sealed off from that of other States. Nevertheless, the idea that Member States would be pre-empted from allowing migrants into their territory by a rigid EC norm would appear to be a startling erosion of sovereignty, even though the logic of the completion of the internal market might require this. 92 See Case C-370-90, R v. Immigration Appeal Yribunal and Surinder Singh ex p Secretary of State for the Home Department [1992] ECR 1-4265. 93 See the Communication from the Commission to the Council and the European Parliament. Biannual update of the scoreboard to review progress on the creation of an area of'freedom, security and justice' in the European Union. COM (2001) 628.
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a quid pro quo for the relaxation in legal migration. 94 The Laeken European Council meeting of December 2001 did not yield the hoped -for move towards the co-ordination of national targets for fresh economic migrants. 95 The Commission itself has noted that the requirement for unanimity in the Council has led to 'an absence of effective pressure to make essential concessions'.96 It has questioned whether there needs to be a move away from unanimity in migration policy to secure progress. The possibility of this appears unlikely in the current political climate. IX. Conclusions-An Assessment of the Commission Proposals
The Commission's Communication and subsequent proposals represent a very bold attempt to set out the shape of Community immigration policy. The lack of any clear normative guidance in the Treaty meant that the way was open for such a policy. The Commission's concentration upon liberalizing economic migration, parity of treatment for migrants and moving towards EU-wide residence rights for long-term migrants moves a long way from the more limited internal-market logic. To the extent that the Treaty provided any guidance to the Commission, it continued to endorse this internal market reasoning. The Commission has however looked beyond this and considered the employment, technological and industrial needs of the Community, as well as the rights of migrants in framing the new policy. The policy brings together each of the different models of EC migration policy discussed above: the completion of the internal market for EU nationals by the removal of border controls; the completion of the internal market for third-country nationals through the right of residence; a migration policy with industrial and employment elements; a common migration policy for admission of new migrants and, finally, a move toward equal rights for resident non -EU nationals. The new policy therefore represents a synthesis of each of the rationales for migration policy set out above. It is suggested however that the most crucial element amongst these is the Commission's objective of completing the internal market for resident third-country nationals. This is because this goal, if achieved, provides a strong justification (and imperative) for the adoption of policies to secure the other objectives of migration policy. Therefore, the free movement and residence of third-country nationals throughout the Union provides a need and justification for the adoption of equal treatment rules at EC level to ensure that the internal market is effectively taken up by such persons and that they cannot undercut EC nationals. Furthermore, the need for
9~ Communication from the Commission to the Council and the European Parliament, On a Common Policy on Illegal Immigration. COM (2001) 672 (final). 9" See the exposition for the plans to co-ordinate migration targets set out in the Communication from the Commission to the Council and the European Parliament, On an Open Method of Co-ordination for the Community Immigration Policy. COM (2001) 387 (final). 96 Ibid., p. 7.
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common migration policies towards the admission of new migrants follows from the free movement of third -country nationals; the maintenance of divergent national rules on admission for non-ED nationals would be largely unsuccessful because migrants could simply enter the ED through the least restrictive State and then move freely.97 A common EC migration policy would itself then mean that policies on immigration aimed at securing industrial and employment objectives should be co-ordinated at EC level. Finally, the free movement of third-country nationals would make them explicitly subjects of EC law and this would give further impetus to the political need to secure their equal rights with ED nationals. In the absence of rights of free movement and residence for third-country nationals within the Community, there is a much less clear basis, both legally and in policy terms, for Community action to regulate these other dimensions of the rights of non-ED nationals. It is clear that the Communication from the Commission indicates that there will need to be a substantial in-flow of new migrant workers. This will itself help to drive the move towards completion of the internal market in workers of whatever nationality. The Member States will have to set national quotas for migrant workers necessary to meet their labour needs. At the same time there will be steps taken under the Amsterdam treaty timetable towards the abolition of internal borders within the ED. The completion of the internal market for ED nationals only would be discriminatory and render the ED less attractive for potential migrants. However national quotas could be substantially undermined if third-country nationals were allowed to move freely between Member States for work and residence purposes. On the other hand, failure to allow free movement to third-country nationals will prevent the completion of the internal market in workers to the detriment of European growth as a whole. The EC would be confronted with a conflict between more open internal borders and the setting of national quotas for migration from outside the ED. This tension was already present in Europe given that the existing EC and national immigration policies on third -country nationals prevent the completion of the internal market. However, it is suggested that the difficulties caused by such a position could be accommodated in an era of 'zero-immigration'. If the Commission's proposals for large-scale primary migration are realized then any failure to complete the internal market in workers will be more significant. There may be potentially large numbers of new migrants who are unable to move to other Member States in order to work despite possible high demand for their labour. If this occurs then there will be more widespread failure of the legitimate labour market which would point to the need to liberalize the EC rules to allow a right to move freely for employment. There are certainly areas of contradiction within the Commission's policy. For example, it is not really clear how the needs of developing countries can be
"7 Subject of course to the completion of the residence period specified under any EC legislation. The proposed Directive set out in COM (2001) 127 final has a two-year qualification period. Downloaded from yel.oxfordjournals.org by guest on December 22, 2010
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reconciled with those of the Community with regard to the use of skilled migrants. In addition, the Commission's stress on the need for a flexible policy on economic migration to reflect changing economic conditions potentially clashes with the goal of giving security of residence to migrants and equal status. Flexibility would seem to imply a lack of security for migrant workers, particularly the unskilled. This is however unacceptable in the light of the desire to give equal rights to migrants and the need to compete on the global labour market. In addition the possible alternative of giving greater rights to more highly skilled workers is unattractive because of the political implications of such a strategy for unskilled migrants denied such rights. These contradictions are however difficult to avoid when framing policy in the migration field. This is particularly so when the Commission has competing Directorate-Generals with potentially different perspectives on the correct approach to migrationrelated issues. Despite the commendably comprehensive approach adopted by the Commission, it is doubtful that the Council will be persuaded to adopt such a liberal policy for the Community. The absence of qualified majority voting in relation to long-stay visas and conditions of residence for third-country nationals means that it will be extremely difficult to pass measures under Title IV. The Member States' individual situations as regards demographic change and skill shortages are sufficiently different that they may wish to continue to adopt national policies on primary economic migration. This would be undermined if there was a completion of the internal market for third-country nationals and a common EC migration policy. When combined with Member States' fears about the effect of enlargement on the labour market, it would appear that the Commission's proposals are unlikely to be accepted. Despite this pessimistic view, there is a significant recognition within the Council that lawfully present third-country nationals should be given further rights as a matter of political equality. There may therefore be sufficient support for an EC measure which sets out minimum standards regarding the rights of resident third -country nationals but which does not give them free movement rights. 98 This would represent a compromise but would not achieve the more complete programme in relation to third-country nationals contemplated by the Commission. Perhaps the most interesting feature of the Commission's proposals is the way in which the economic and demographic need for primary migration has led to a renewed interest in securing the rights of migrants-both current and future. In addition, the economic pressures of global competition have given further impetus to new liberal thinking on migrants' rights in the EU. Although the motivation behind this change may rest on pragmatic foundations, the effect could prove to be of considerable benefit to both migrant workers presently in the EU and those to come.
9" This is particularly so given the evidence that Member States do not actually diverge greatly in their national rules regarding migrants. See supra n. 52.

Economic Migration

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Economic Migration

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Economic Migration into the European Union: Standing at the Crossroads

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