European Societies, Migration, and the Law: The ‘Others' amongst ‘Us' 1108487688, 9781108487689, 9781108767637

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EUROPEAN SOCIETIES, MIGRATION, AND THE LAW

Not a day passes without political discussion of immigration. Reception of immigrants, their treatment, strategies seeing to their inclusion, management of migration flows, limitation of their numbers, the selection of immigrants; all are ongoing dialogues. European Societies, Migration, and the Law shows that immigrants, regardless of their individual status, their different backgrounds, or their different histories and motivations to move across borders, are often seen as ‘the other’ to the imaginary society of nationals making up the receiving (nation-)states. This book provides insights into this issue of ‘othering’ in the field of immigration and asylum law and policy in Europe. It provides an introduction to the mechanisms of ‘othering’ and reveals strategies and philosophies which lead to the ‘othering’ of immigrants. It exposes the tools applied in the implementation and application of legislation that separate, deliberately or not, immigrants from the receiving society.   is Associate Professor of European Union Law at Leiden Law School, the Netherlands. His teaching and research focuses on the EU’s internal market, the free movement of persons, European Citizenship, as well as EU migration law. His recent publications include The Civic Citizens of Europe (2016).

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EUROPEAN SOCIETIES, MIGRATION, AND THE LAW The ‘Others’ amongst ‘Us’

Edited by MORITZ JESSE University of Leiden

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108487689 DOI: 10.1017/9781108767637 © Cambridge University Press 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2021 A catalogue record for this publication is available from the British Library. ISBN 978-1-108-48768-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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To Caspar, Róisín, and Timna, born while this book was written.

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CONTENTS

List of Figures and Tables xvi List of Contributors xvii Preface xix Acknowledgements xxiv List of Abbreviations xxv 1

European Societies, Migration, and the Law: Instead of an Introduction 1   1.1 Introduction and Objective 1 1.2 Background and Context 3 1.3 Structure 8 1.3.1 Part I: Making the ‘Other’ – The Construction of ‘Otherness’ 9 1.3.2 Part II: The Operation of Legal ‘Othering’ and the National–Foreigner Dichotomy in the EU 10 1.3.3 Part III: After the Arrival of the ‘Others’ – Reactions to the ‘Refugee Crisis’ of 2015 12 1.3.4 Part IV: ‘Othering’ in the EU 13 1.3.5 Part V: European Societies, ‘Otherness’, Migration, and the Law 14

  2

Making the ‘Other’ – The Construction of ‘Otherness’ 17

The Immigrant As the ‘Other’

19

  2.1 ‘Othering’ As the Discursive Differentiation from a Collective-Self 19 2.1.1 Who Is the ‘Other’? – Different from ‘Us’ 19 2.1.2 Who Are ‘We’? – Better than the ‘Other’ 22 2.2 The ‘Othering’ of Immigrants and the Law 25 2.2.1 Pre-determined Power Relations between Receiving Society and Newcomers 25

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Foreigners and Immigrants As the Natural ‘Others’ in a Nation State 26 2.3 ‘Othering’ of Immigrants and European Union 31 2.3.1 EU Free Movement and Citizenship of the Union 31 2.3.2 EU Migration Law 32 2.4 Law As an Amplifier of ‘Otherness’ and Defender of ‘Communities of Value’ 35 2.4.1 Immigration Law As a Mirror 35 2.4.2 Integration Measures and Economic Conditions As (Fake) Defenders 38 2.4.3 The Role of the Judiciary 40 2.5 Conclusions: Immigrants As the ‘Other’ 41 2.2.2

3

‘Othering’ in Unconcerned Democracies and the Rise of Anti-liberal Political Divisions 43 ˇ  ˊ   r 3.1 Introduction 43 3.2 ‘Othering’ As a Leading Principle of Czech Political Discourse 3.2.1 ‘Othering’ and Political Actors in the Czech Republic 3.2.2 The Impact of ‘Othering’ on Law, Civic Society, and International Cooperation 50 3.3 Constructing ‘Us’ and ‘the Others’ While Deconstructing Modern Constitutionalism 52 3.3.1 The Logic of Political ‘Othering’ in Five Principal Steps 3.3.2 ‘Unconcerned Democracy’ As a Consequence of Anti-liberal ‘Othering’ 56 3.4 Conclusions: Constitutional Values for ‘Us’ and Nothing for ‘The Others’? 60

4

45 45

53

The Crimmigrant ‘Other’ at Europe’s Intra-Schengen Borders 62     4.1 Introduction: Europe and the Schengen Area 62 4.2 Who Is ‘the Other’? 65 4.3 Bordering and ‘Othering’ 68 4.3.1 ‘Bordering’ and National Identity 69 4.3.2 Intra-EU ‘Othering’ and Bordering 71 4.4 Controlled Free Movement in the Schengen Area 72 4.4.1 Schengen Proof Bordering 75 4.4.2 Schengen Proof ‘Othering’ 77 4.5 Concluding Reflections 78

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The ‘Others’ amongst ‘Them’ – Selection Categories in European Resettlement and Humanitarian Admission Programmes 81      5.1 Introduction: Setting the Scene 81 5.2 Refugee Selection in Resettlement and Humanitarian Admission Programmes 83 5.3 Categorising As ‘Othering’: Logics of Humanitarianism, Security, and Assimilability 85 5.3.1 Humanitarian ‘Othering’: UNHCR’s Submission Categories for Resettlement 87 5.3.2 Assimilability Logics of ‘Othering’ 94 5.4 Harmonising Selection Categories in the EU: Combining Humanitarian, Security, and Assimilability Logics 99 5.5 Conclusion 102

  6

The Operation of Legal ‘Othering’ and the National–Foreigner Dichotomy in the EU

105

The Rights of ‘Others’ in Domestic Constitutions: Towards an Equality-Based Approach? 107 ˊ  6.1 Introduction 107 6.2 Constitutions As Expressions of National Identity: A Textual Analysis of the Irish Constitution 109 6.2.1 A Catholic Constitution 110 6.2.2 A Nationalist Constitution 112 6.2.3 A Liberal Democratic Constitution Capable of Evolving with a Diverse Society 114 6.3 The Position of Non-citizens in the Constitutional Order: Case-Law Analysis 115 6.3.1 Inconsistent Terminology in the Fundamental Rights Provisions 116 6.3.2 Conflicting Decisions on the Status of Non-citizens in the Constitutional Order 117 6.3.3 A Change of Direction? An Equality and Dignity Based Approach in NHV v. Minister for Justice and Equality 121 6.3.4 Breaking down the Citizen–Foreigner Distinction: How and Why? 123 6.3.5 Future Directions: Increasing Openness to Rights Claims, Ongoing Resistance to the Dismantling of Citizenship As the Fundamental Legal Status? 125 6.4 Conclusion 128

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Hierarchies of Privilege: Juxtaposing Family Reunification Rights, Integration Requirements, and Nationality in EU Law 130   7.1 Introduction 130 7.2 A (Conditional) Benchmark: Family Reunification Rights of EU Citizens 132 7.2.1 Economically Active: Unconditional Right to Residence and Family Reunification 134 7.2.2 Economically Inactive: Conditional Rights to Family Reunification 134 7.2.3 Static Citizens: No Right to Family Reunification under EU Law 135 7.3 Rights Granted under International Agreements of the EU 136 7.3.1 Free Movement of the EEA Nationals and Swiss Nationals 137 7.3.2 Turkish Nationals under the Ankara Agreement 139 7.4 Third-Country Nationals under Secondary EU Law 142 7.4.1 The Family Reunification Directive: Benchmark for Unprivileged TCNs 143 7.4.2 Highly Qualified Migrants: Privileged Applicants 147 7.5 Conclusion: Hierarchies of Privilege and ‘Othering’ 149

8

Alienation of ‘Second Generation Turkish Dutch’ in the Name of ‘Integration’: Family Reunification Policies in the Netherlands 152  ş- 8.1 Introduction 152 8.2 Bureaucratic Alienation: Family Reunification for Turkish Citizens in the Netherlands 154 8.2.1 Prevention of Court Judgments: Well-Timed ad hoc Residence Permits 156 8.2.2 Restrictive Administrative Interpretation of Individual Rights 159 8.2.3 Excessive Length of Legal Proceedings 160 8.2.4 Restrictive Policies and Denied Rights: Three Steps of Alienation and ‘Othering’ 162 8.3 Perceptions of Discrimination and Alienation by Second Generation Turkish Dutch 162 8.3.1 Income Requirements for Family Reunification 162 8.3.2 Civic Integration Exam Abroad and Courses in the Netherlands 163

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 8.3.3 Age Requirements for Family Life 167 8.3.4 High Administration Fees for Family Reunification 8.3.5 Mechanics of Alienation and Feelings of Exclusion 8.4 Impact on the Integration of SGTD Sponsors 169 8.5 Conclusion: The Administrative Creation of ‘Otherness’

9

xi 168 168 172

Different Levels of ‘Legal Otherness’ in the Context of Expulsion and Entry Bans 173   9.1 Introduction 173 9.2 Different Levels of Protection against Expulsion, Security of Residence, and Integration 175 9.3 Different Degrees of ‘Legal Otherness’ in EU Law 178 9.3.1 EU Citizens and Their Family Members Covered by the Citizenship Directive 178 9.3.2 Turkish Nationals Covered by the EEC–Turkey Association Agreement 183 9.3.3 Long Term Resident Third-Country Nationals Covered by the LTR-Directive 185 9.3.4 Conclusions regarding the Different Levels of ‘Legal Otherness’ in the Context of Expulsion 186 9.4 Entry Bans and the Schengen-Information System 188 9.5 Conclusions 190

10

The Non-national As ‘The Other’: What Role for Non-discrimination Law? 192    10.1 10.2 10.3

Introduction 192 The Inequalities of Nationality 193 Current Responses from Non-discrimination Law 195 10.3.1 Nationality Discrimination under the ECHR 195 10.3.2 Nationality Discrimination in EU Law 198 10.4 An Anti-stigmatisation Approach 199 10.4.1 The Anti-stigmatisation Approach 199 10.4.2 Nationality As Stigma? 200 10.5 Outlines of a New Approach 206 10.5.1 Protecting the Powerless 206 10.5.2 Rebuffing Stereotypes 207 10.5.3 Recognising Social Membership 208 10.6 Conclusion 209

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  11

After the Arrival of the ‘Others’ – Reactions to the ‘Refugee Crisis’ of 2015 211

The Reception of Asylum Seekers in Europe: Exclusion through Accommodation Practices 213   11.1 11.2 11.3

Introduction 213 Methodological Approach 215 Reception Practices in the EU, Austria, and Italy 217 11.3.1 Reception in the EU 217 11.3.2 Reception in Austria 220 11.3.3 Reception in Italy 221 11.4 The Camp As a Symbol and Place of Exclusion 222 11.4.1 ‘Othering’ through Space 224 11.4.2 Catch 22 – ‘Othering’ through Bureaucratic Means 11.5 Conclusion 228

12

226

Integration Impossible? Ethnic Nationalism and Refugee Integration in Bulgaria 230     12.1 12.2

Introduction 230 Bridging East and West: The Case of CEE and Bulgaria 232 12.2.1 Refugee Policies in CEE Countries 232 12.2.2 Refugee Policies in Bulgaria 234 12.3 Laissez-faire or Laissez-passer Approach to Refugee Integration? 235 12.3.1 Refugee Integration Policies in Bulgaria: Pre-2013 235 12.3.2 Refugee Integration Policies in Bulgaria: Post-2013 237 12.4 ‘Othering’ and ‘Otherness’ in the East and in the West 241 12.4.1 Nation-Building, Citizenship, and Integration Policies 241 12.4.2 Ethnic and Civic Nationalism Revisited 242 12.5 Conclusion 244

13

Refugees’ Integration into the Labour Market: Discharging Responsibility in the UK 247  -,   ,    13.1 13.2 13.3

Introduction 247 Discharging Responsibility for Labour Market Integration The Legal Framework towards Refugees’ Labour Market Integration 251

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13.3.1 Obligations Stemming from International Treaties 13.3.2 Obligations Stemming from EU Law 253 13.3.3 Implementing Policies to Include Refugees 254 13.4 The UK’s Syrian Vulnerable Persons Resettlement Scheme (VPRS) 255 13.4.1 Planning and Coordination 255 13.4.2 Support 256 13.4.3 Monitoring 257 13.4.4 Operational Challenges in the VPRS 258 13.4.5 Experiences of ‘Recognised’ and ‘Resettled’ Refugees 13.5 Conclusion 262

  14

‘Othering’ in the EU

251

259

265

When a Country Is Not a Home: The Numbered (EU Citizens) ‘Others’ and the Quest for Human Dignity under Brexit 267   14.1 14.2

Introduction 267 Constructing EU Citizens’ ‘Otherness’: From the Progressive Framing of the European ‘Other’ to Externally Imposed Alienation 272 14.2.1 The Politicisation of EU Mobility in the United Kingdom 272 14.2.2 Politicisation and Institutional Sedimentation of the EU ‘Other’ 274 14.3 Human Dignity and the Migrant Manifesto of 2011 279

15

The ‘Market Insider’: Market-Citizenship and Economic Exclusion in the EU 282      15.1 15.2

Introduction 282 The Dano-Trinity and the Parousia of Market Citizenship 282 15.2.1 Market Citizenship in Sala, Baumbast, Grzelczyk, and Bidar 284 15.2.2 Market Citizenship in Directive 2004/38: The Omnipotence of Article 7 284 15.2.3 The Dano-Evolution 286 15.3 ‘Fata Morgana’ of Legal Certainty? The Concept of ‘Sufficient Resources’ and ‘Unreasonable Burdens’ 288 15.4 Undermining Residence Security of EU Citizens 290 15.4.1 Automatic Illegality after Automatic Means-Test? 290 15.4.2 Access to Permanent Residence 293

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15.4.3 Returning with Family to Home Member State after ‘Illegal’ Residence in Host Member State 295 15.5 Concluding Remarks: The Logic and Effects of Market Citizenship 297

16

Inclusion and Exclusion of Migrant Workers in the EU 301   16.1 16.2

Introduction 301 Forms of Employment over Time 302 16.2.1 From Bretton Woods to Neoliberalism 302 16.2.2 Non-standard and Flexible Forms of Employment 304 16.3 Inclusion and Exclusion in EU Free Movement Law 307 16.3.1 EU Workers: Equal Treatment As Inclusion 307 16.3.2 Union Citizenship I: Inclusion of the Economically Inactive 310 16.3.3 Union Citizenship II: No Safety Net 312 16.3.4 The Legal Consequences of Exclusion: Movement and Work without Protection under EU Law 315 16.3.5 The Wider Consequences of Exclusion: Stigmatisation and Social Hierarchies 317 16.4 Conclusion 318

  17

European Societies, ‘Otherness’, Migration, and the Law 321

Deciphering the Role of (Migration) Law in the Social Construction of ‘Otherness’ 323   17.1

Critical Approaches to European Migration Law 323 17.1.1 Starting Point: Salient Political Debates 324 17.1.2 Migration Law between Doctrine and Critique 325 17.1.3 Reconstructing the Law beyond ‘Othering’ 327 17.2 Methodology: Interaction of Legal Rules and Court Judgments with Social Practices and Political Processes 328 17.2.1 Constitutional Law and the Danger of ‘Hollow Hope’ 329 17.2.2 Dynamic Evolution of Migration Law between Statutory Interpretation and Constitutional Adjudication 332 17.2.3 Law As a Counterpoint and Individual Agency 334 17.3 Research Horizon: Overarching Trends in the Social Sciences 338 17.3.1 Conditionality As an Expression of State Sovereignty 339

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17.3.2 Distinguishing ‘Alienage’ and ‘Denizenship’ 342 17.3.3 The Significance of ‘Othering’ beyond Migration Law 344 17.4 Conceptions: Reconstructing European Migration Law 346 17.4.1 Ambiguities of the EU’s ‘Postnationalism’ 347 17.4.2 Beyond Binary Descriptions of EU Migration Law 349 17.4.3 Societal Self-Images between Pluralism and Coherence 352 17.5 Conclusion 354

18

The ‘Others’ amongst ‘Us’: Instead of a Conclusion

356

  18.1

18.2 18.3 18.4 18.5

Thick Legal Norms and Bureaucratic ‘Othering’ 357 18.1.1 The Stickiness of Substantive Rules and Flexible Procedures 357 18.1.2 Vague Norms and ‘Reverse Harmonisation’ on EU Level 358 18.1.3 Bureaucratic ‘Othering’ 361 Economic ‘Othering’ 362 Cultural ‘Othering’ 364 Who Are ‘We’? 366 Stop ‘Othering’ – Make Migration and Immigrants ‘Normal’ 368

Bibliography Index 427

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FIGURES AND TABLES

Figure 5.1 Three logics of ‘othering’ in resettlement and humanitarian admission programmes, 2011–2016 102

Tables 2.1 Legal ‘othering’ in the EU 35 5.1 Logics of ‘othering’ in categorisations for resettlement and humanitarian admission 87 5.2 Summary of programmes and reported categories with humanitarian logics of ‘othering’ 92 5.3 Summary of programmes and categories with security logics of ‘othering' 95 5.4 Summary of programmes mentioning assimilability logics 100 7.1 Hierarchies of privilege and ‘othering’ 150 8.1 Legal context of family reunification according to the legal status of sponsors 155 8.2 Family reunification regulations according to the legal status of sponsors in the Netherlands (in 2019) 157 11.1 Interviews at reception centres 216

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CONTRIBUTORS

   , Integration Associate, UNHCR Bulgaria  , University of Leiden, Faculty of Law   , Oxford Brookes University, SOAS University of London, School of Law  ä, Brunel University London, College of Business, Arts and Social Sciences  , University of Vienna, Institute for Political Science  ˊ , Charles University Prague, Faculty of Law  , T.M.C. Asser Institute, The Hague  , University of Leiden, Facluty of Law  ş-, Expert, Presidency for Turks Abroad and Related Communities  , Warwick University, Law School  , Oxford Brookes University, Oxford Brookes Business School  -, Oxford Brookes University, School of Law ˊ , National University of Ireland Maynooth, Department of Law xvii

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  

 , Erasmus University Rotterdam, Department of Public Administration and Sociology  ˇ , Charles University Prague, Faculty of Law  , University of Konstanz, Faculty of Law   , Vrije Universiteit Amsterdam, Faculty of Law  , University of Amsterdam, Department of Political Science    , University of Leiden, Faculty of Law

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PREFACE

The Summer of 2018, the Summer of ‘Othering’ The summer of 2018 was a great moment to reflect on what ‘othering’ is, how it functions and which groups are affected by it. It was three years after the peak of the so-called refugee (policy) crisis in Europe, which unfolded late in the summer of 2015; the discussions about how refugees from the middle-east and Africa should be treated had not faded away, but seemed to reach yet another climax. The aftermath of the crisis almost led to the fall of the German government, which was divided over the question of whether asylum seekers could be pushed-back at the German Austrian border in cases of secondary movement, and how and how far border controls should ensure such push-backs. Additionally, a new Italian government, which by the time this book was in its final production had fallen, started to aggressively demand far-reaching reforms of the European asylum system. To show strength, the government, represented by the new minister of the interior, Matteo Salvini, from the right-wing party Lega Nord, prohibited ships which had rescued refugees during their (failed) passage over the Mediterranean from entering Italian ports. These escalations in the year 2018 were remarkable. The numbers of refugees who were reaching European shores were decreasing and were nowhere near the amounts seen in 2015 and before. The policies put in place were effective in so far as they achieved a drastic lowering of the numbers of arrivals,1 albeit, some argued, at the expense of the protection of human rights.2 In short, when looking at the facts on the ground, things seem to have calmed down and an immediate threat 1

2

See D. Thym, Der Rechtsbruch-Mythos und wie man ihn widerlegt (Verfassungsblog, 2 May 2018), https://verfassungsblog.de/der-rechtsbruch-mythos-und-wie-man-ihn-wide rlegt/, last accessed 21 July 2018. See, for example, V. Moreno-Lax, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-Interdiction/Rescue-without-Protection” Paradigm’ (2018) 56(1) Journal of Common Market Studies, 119–140.

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

of a repetition of the scenes which occurred in the summer of 2015 was unlikely. Yet, heated political discussions would not stop. At the same time, the football world-cup organised by FIFA took place in Russia. Headlines in newspapers unsurprisingly often read ‘we won’ or ‘we lost’, referring to the national team of the country where that newspaper was published.3 The players on the football pitch represented ‘their’ state or nation and those feeling a bond with that national team expressed their belonging by referring to the team as ‘we’. On a more abstract level, one could witness for example a German ‘we’ or, for much longer in this world cup, an English, French, Belgian or Croatian ‘we’ in which all supporters of the respective team found their place. This, of course, is normal during all sport events involving national teams and not in itself remarkable.4 However, during the weeks of the world cup an interesting mingling of issues occurred. Headlines in proximity to those referring to successes or failures of ‘our’ national teams pointed to the arrival of ‘them’, as well as the problems and risks ‘they’ would pose, usually referring to migrants and asylum seekers. During the collective celebrations of national togetherness during the football world cup, the differentiation between ‘us’, the members of the nation, and ‘them’, the aliens, the new-arrivals, the immigrants and asylum seekers from outside of the nation, was very tangible for those who wanted to see it. The contention in discussions was that ‘they’ would come to live ‘amongst us’. This was depicted as a grave disruption of normality. Normality needed to be restored, immigration needed to be curbed. These sentiments are not new. In fact, emigration, immigration and integration of those settling into a new environment seldom occurs without at least some friction with the residing population. Yet, observers claim to witness a hardening of stances in Europe and the whole western world over recent years. Opinions that receiving nations must protect themselves from too much immigration and that nations have a right to do so in order to preserve their culture and liberal characteristics have moved from the right spectra of the political debate and into the mainstream.5 Political discussions about immigration are now a daily

3

4 5

B. Anderson calls the sports pages and editorials a ‘world of homelands’ in which ‘the national “us” is placed’, B. Anderson, Us & Them – The Dangerous Politics of Immigration Control (Oxford: Oxford University Press, 2013), p. 178. Ibid. D. Miller, Strangers in Our Midsts – the Political Philosophy of Immigration (Cambridge, MA: Harvard University Press, 2016).

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occurrence and have become more divisive. As a direct result, political compromises are almost impossible to reach. Immigrants are separated from the receiving societies and pictured as disruptive elements. As Catherine Dauvergne mentioned in her book about the end of settler societies, ‘a new worldwide “us” and “them” divide, existential fear, and an unprecedented place on the central political stage of all Western liberal democracies’ led to new politics of migration with levels of hostility towards migrants and ‘a strident objection to asylum’ at levels ‘higher than ever before’.6 The lines between members of a nation and those considered ‘other’ are blurred. Again, the football world cup provided some stark illustrations of this point. For example, members of the Swiss national team of Kosovan origin celebrated their goals by depicting the Albanian national symbol, the Double-Headed Eagle, with their hands. They did so in a game against Serbia, provoked by racist chants from the stands of the stadium in front of Serbian spectators. Immediately, discussions about whether this behaviour was appropriate for players of the Swiss national team and whether they should be allowed to make an Albanian gesture while representing Switzerland erupted.7 Almost identical discussions involving players with foreign backgrounds took place in Germany. A couple of German players of Turkish origin posed on a picture with the president of the Turkish Republic Erdogan. The picture was taken during a meeting with all players of Turkish origin playing in the English Premier League during a visit of Erdogan to the United Kingdom. The players claimed it was taken as a matter of courtesy and without any political message.8 The president of Turkey claims to be a big football fan. Yet, discussions immediately arose about whether players representing Germany should be allowed to pose with such a divisive foreign leader. During a friendly game of the national team, said players were booed by the German audience even though some of them were amongst the players who secured Germany’s victory at the 2014 FIFA world cup. Even after the world-cup and the early elimination of the German team, the focus remained on these few players and discussions circled around the

6

7 8

C. Dauvergne, The New Politics of Immigration and the End of Settler Societies (Cambridge: Cambridge University Press, 2016), pp. 8, 129. Nota bene, even though these players scored decisive goals for Switzerland. Even though one of the players involved, Mezut Özil, who was in the centre of the ‘affair’ and resigned from the national team, later chose Erdogan as his best man when he married.

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question of whether their behaviour had contributed to the early elimination of the national team. The impression arose that ‘foreign’ elements in the national team would be made a scapegoat and remarks by officials from the Germany Football Association and those in charge of the national team further put fuel on this fire. This was criticised heavily. Yet, an invisible line was drawn within the institution representing a nation, i.e. the national football team, and players of the team who had a foreign background and did not hide it were ‘othered’. Yet another example of ‘othering’ in the summer of 2018 came from a country that was not involved in the FIFA world cup at all. In addition to closing Italy’s shores for asylum seekers, the Minister of Interior of Italy, Salvini, also announced action to ‘deal’ with the Roma people residing in Italy. He floated the idea of conducting a census of all Roma living in Italy to register them. Primarily, this should be done to expel all Roma with foreign nationality staying illegally in Italy. This was not surprising in itself. Anti-Roma sentiment is a tradition amongst many right-wing politicians in Europe. However, Salvini added that those Roma in possession of Italian citizenship would ‘unfortunately’ have to be kept in Italy.9 Apparently, in the eyes of (part of ) the Italian government in charge in the summer of 2018, there are Italian citizens whose existence and rights to stay in Italy is ‘unfortunate’. Naturally, the words and plans of Minister Salvini were criticised heavily. These three examples depict forms of ‘othering’. Perceived differences in lifestyle, culture, skin colour, religion, sex or gender, sexual preference, wealth and even food10 play a role in the process to identify individuals or whole groups of people as different. In the same vein, literature has defined ‘othering ‘as the ‘devaluation of certain individuals, communities, and even nations, while privileging those who are members of the dominant group, class, or country’.11 The summer of 2018 is long gone. The world-cup has been won by France and Matteo Salvini manoeuvred his party out of government. However, until today no day passes without political discussions of immigration, integration, reception of immigrants, their treatment, 9

10

11

See, The Guardian, ‘Far-right Italy Minister Vows “Action” to Expel Thousands of Roma’, The Guardian, 19 June 2018, available at www.theguardian.com/world/2018/jun/19/italycoalition-rift-roma-register-matteo-salvini, last accessed 9 December 2019. See D. M. Feidenreich, Foreigners and their Food: Constructing Otherness in Jewish, Christian, and Islamic Law (Berkeley: University of California Press, 2011). J. Todres, ‘Law, Otherness, and Human Rights’ (2009) 49(3) Santa Clara Law Review, 609.

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strategies seeing to their inclusion into the host societies, management of migration flows, limiting of numbers or the selection of immigrants and the like. As will be shown in this book, immigrants, regardless of their individual status, the different backgrounds they come from or their different histories and motivations to move across borders, are often seen as ‘the other’ to the imaginary society of nationals making up the receiving (nation-) state. Deliberately or not, immigrants become ‘the other’. This book will provide insights into the issue of ‘othering’ in the field of immigration and law in Europe. It will provide an introduction to the mechanisms of ‘othering’ and reveal strategies and philosophies leading to the ‘othering’ of immigrants. It will expose the tools applied in the implementation and application of legislation which separate, deliberately or not, immigrants from the receiving society. The book will address questions such as who is the ‘other’?, who are ‘we’?, and what it means that ‘we’ express ‘otherness’ the way ‘we’ do in the context of the current political landscape and heated discussions about immigration. In doing so, the book will look at political and legal action and discussions and seek to contribute to these discussions. It will also suggest a set of ideas and principles on how to minimise the negative effects of ‘othering’. The analysis will cover policies to regulate immigration in the most pertinent areas, such as border controls, economic migration, EU citizenship and, naturally, the treatment of refugees and asylum seekers. In short, this book is a scholarly contribution to the discussion circling around immigration, asylum, politics and the treatment of immigrants. It contains ideas, approaches, and developments on the topic ‘European Societies, “Otherness”, and the Law' in times of increasing nationalism, xenophobia, and skepticism to international cooperation.

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A C K N O W L ED G E ME NTS

This book would not have been possible without the support of the Dutch Research Council (NWO – Nederlandse Organisatie voor Wetenschappelijk Onderzoek). This book has its foundation in an NWO VENI research grant awarded to the editor, Moritz Jesse, in 2015–2017 for the project ‘The others amongst us: Western societies, otherness, and the law’. This book would also have not been possible without the support of the Europa Institute at the Faculty of Law of the University of Leiden. The Europa Institute and its wonderful staff made it possible to finish this project after NWO funding ran out. Carina Van Oss, research assistant at the Europa Institute Leiden, also deserves thanks and gratitude for her fantastic work on the bibliography and footnotes of this volume. Daniel Carter must be thanked not only for his informative chapters but also for his great help in checking spelling and grammar of many chapters in this book – the usual disclaimer applies. Last, but not least, Darinka Piqani Jesse and Hanna-Sofia Jesse must be thanked for their love, support, and inspiration. The project would not have lifted off and progressed as it did without you.

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ABBREVIATIONS

AA AFMP AG AMIF AP CAS CEAS CEE CFR CJEU CRvB DNPC EC EEA EEC EUCFR ECHR ECJ ECRI ECtHR EFTA EMN EU EU27 EU28 FIFA FRD GC GDP

Ankara Agreement (EEC–Turkey Association Agreement) Agreement on Free Movement of Persons between the EU and Switzerland Advocate General Asylum, Migration, and Integration Fund (EU) Additional Protocol to the Ankara Agreement Emergency Reception Centres for asylum seekers (Italy) Common European Asylum System Central and Eastern Europe Charter of Fundamental Rights, EU Court of Justice for the European Union Centrale Raad van Beroep (highest Dutch court on social security matters) Dutch National Point of Contact European Communities European Economic Area European Economic Community Charter of Fundamental Rights, EU European Convention on Human Rights Court of Justice of the European Union [European Court of Justice] European Commission against Racism and Intolerance European Court of Human Rights European Free Trade Area European Migration Network European Union European Union of 27 (after Brexit) European Union of 28 (before Brexit) Fédération Internationale de Football Association [International Federation of Association Football] Family Reunification Directive (Directive 2003/86/EC) Grand Chamber of the European Court of Human Rights Gross Domestic Product

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xxvi HRW ICCPR ICESCR ICT ILO IND IOM LA LGBTQI LTRDirective MVV NGO OHCHR OJ ORRM QNI RIES SBC SGTD SIS SPD SPRAR TCN TEU TFEU TSO UNHCR Vb 2000 VPRS Vv 2000 VVR Vw 2000

   Human Rights Watch International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Intra-Corporate Transferee International Labour Organisation Immigratie en Naturalisatiedienst [Netherlands Immigration and Naturalisation Service] International Organisation of Migration Local Authorities Lesbian, gay, bisexual, trans, queer, intersex Long-Term Residents Directive (Directive 2003/109/EC) Machtiging voorlopig verblijf [Netherlands Authorisation of Temporary Stay/Entry Visa] Non-Governmental Organisation Office of the United Nations High Commissioner for Human Rights Official Journal Obligatory Relocation and Resettlement Mechanism of asylum seekers Quality of Nationality Index Refugee Integration and Employment Service (UK) Schengen Border Code Second Generation Turkish Immigrants in the Netherlands Schengen Information System (Regulation (EU) 2018/1861) Svoboda a přímá demokracie Party [Freedom and Direct Democracy Party, Czech Republic] Protection System for Asylum Seekers and Refugees Third-Country National Treaty on European Union Treaty on the Functioning of the European Union Third Sector Organisations United National High Commissioner for Refugees Vreemdelingenbesluit 2000 [Netherlands Aliens Decree 2000] Syrian Vulnerable Persons Resettlement Scheme (UK) Vreemdelingenverordeningen 2000 [Netherlands Aliens Regulations 2000] Verblijfsvergunning [Netherlands Regular Residence Permit] Vreemdelingenwet 2000 [Netherlands Aliens Act 2000]

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1 European Societies, Migration, and the Law Instead of an Introduction

        

1.1 Introduction and Objective The category of the Other is as primordial as consciousness itself. In the most primitive societies, in the most ancient mythologies, one finds the expression of a duality – that of the Self and the Other. This duality was not originally attached to the division of the sexes; it was not dependent upon any empirical facts. It is revealed in such works as that of Granet on Chinese thought and those of Dumézil on the East Indies and Rome. The feminine element was at first no more involved in such pairs as Varuna-Mitra, Uranus-Zeus, SunMoon, and Day-Night than it was in the contrasts between Good and Evil, lucky and unlucky auspices, right and left, God and Lucifer. Otherness is a fundamental category of human thought.1

It seems that the urge to divide people into categories of ‘us’ and ‘them’ is a basic human instinct. In times of crisis, these divides become particularly visible, and notably affect minorities. Looking at the area of immigration, this book examines how law construes, amplifies, or orders social divides between immigrants and the receiving society. It also shows how law, if used wisely, can contribute to social cohesion. Underlying this is the fact that minorities at large and immigrants tend to be conceived of as ‘others’, which raises the question of the construction and effect of ‘otherness’ in law in our ‘Western’ and European societies. Managing increasing diversity in effective ways whilst preserving legitimate interests of all members of society is a real challenge in the current (political) environment and not merely an academic or judicial question. This book will focus on immigration and asylum legislation, its

1

S. de Beauvoir, The Second Sex (1949, translated version, H. M. Parshley, New York: Vintage Books, 1974).

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

 , ,   

implementation, and its application within the EU and its Member States. It will provide a panorama of differentiations made in legislation on EU and Member State level. Some groups of immigrants, such as immigrants from Islamic countries, are (still) considered ‘the other’ and measures are taken to prevent their immigration,2 while different groups of immigrants, for example immigrants from western States or wealthy individuals, are not considered ‘other’ and are even invited to come.3 The common objective of all chapters is to decipher how the dichotomy of ‘us’ and the ‘other’ is reflected in legislation in various areas, situations, and for different groups of immigrants, at different stages of their migration trajectory in Europe.4 In this volume the underlying assumption is that regulation governing migration and the daily lives of immigrants within the EU and its Member States is to a significant degree not fit for purpose. It will not cater for the needs of today’s diverse societies and is not capable of functioning under the migration pressure Europe is facing. The legal and permanent presence of big groups of non-nationals is not catered for. It is simply not considered ‘normal’ that such elements are present within the receiving societies. The presence of immigrants is therefore still largely depicted as abnormal, which results in rules and regulations that reflect an inaccurate, ancient picture of society wherein the immigrant is often made the ‘other’. The underlying policies are often informed by an outdated dichotomy of the citizen and the foreigner wherein the citizen of a nation state has rights and the foreigner gets rights. Laws are stuck in the old reality as a matter of path dependence wherein the dominant group of home-state nationals/citizens had the

2

3

4

R. Penninx, ‘Integration of Migrants: Economic, Social, Cultural and Political Dimensions’, in A. L. MacDonald (ed.), The New Demographic Regime – Population Challenges and Policy Responses (New York: United Nations, 2005), pp. 137–151; S. Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge Univeristy Press, 2004); D. Kostakopoulou, Citizenship, Identity, and Immigration in the European Union: Between Past and Future (Manchester: Manchester University Press, 2001); D. Acosta Arcarazo and J. Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’ (2014) 39(3) European Law Review, 378. A. Farahat, ‘“We Want You! But . . .” Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion’ (2009) 15(6) European Law Journal, 700–718; C. Lucie, ‘Understanding the Diversity of EU Migration Policy in Practice: The Implementation of the Blue Card Initiative’ (2013) 34(2) Policy Studies, 180–200. J. H. H. Weiler, ‘Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals - A Critique’ (1992) 3(1) European Journal of International law, 65–91.

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.   



monopoly to determine the realities of life for all foreign elements within society through national legislative procedures.5 Foreigners, i.e. noncitizens, are per definition the ‘legal other’. This mindset, in which the presence of foreign immigrants is still depicted as a troublesome disruption of normality, is leading to all sorts of misunderstandings in today’s European Union.6 This must change. The law must reflect and cater for reality better and to stop the ‘othering’, deliberately or not, of immigrants with all its problematic consequences.

1.2 Background and Context As has been shown in the Preface, a brief glance at the newspapers and political discussions these days explains why ‘othering of migrants’ and the legal issues circling around it are such interesting things to study. Most Member States of the EU have turned from states of emigration to states of immigration. ‘Immigration pressure’ on European States is and will remain high.7 In other words, the European Union and its Member States will remain a place where individuals from poorer, politically less stable areas of the world will want to migrate to, at least as long as grave discrepancies in wealth and political and economic stability exist. Numbers may fluctuate from year to year; however, migration movements into Europe will inevitably continue. The effects of climate change will increase the likelihood of such movements. Over the last decades the diversity of societies in all European States has increased tremendously.8 Some scholars speak of the emergence of super-diverse societies.9 The notion that European societies are 5

6

7

8

9

A. Favell, ‘Integrating Nations: The Nation State and Research on Immigrants in Western Europe’ (2003), in G. Brochmann (ed.), Multicultural Challenge (Comparative Social Research, Vol. 22) (Bingley: Emerald Group Publishing Limited, 2003), pp. 13–42; see also E. Guild, The Legal Elements of European Identity - EU Citizenship and Migration (The Hague: Kluwer Law International, 2003). M. Jesse, ‘“Disrupting and Annoying” - EU Citizenship and EU Migration Law Destroying Old Habits of National Migration Policy Making’, in M. de Visser and A. P. van der Mei (eds.), The Treaty on European Union 1993–2013: Reflections from Maastricht (Antwerp: Intersentia, 2013), pp. 407–428. See A. Szczepanikova and T. Van Crieking, The Future of Migration in the European Union – Future Scenarios and Tools to Stimulate Forwar-Looking Discussions, EUR 29060 EN (Luxembourg: Publications Office of the European Union, 2018). W. Kymlicka, ‘The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies’ (2010) 61 International Social Science Journal, 101. S. Vertovec, The Emergence of Super-Diversity in Britain. Working Paper No. 25 (Oxford: Centre on Migration, Policy, and Society, Oxford University, 2006).

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

 , ,   

homogeneous and consist of one dominant (white) majority group is less and less an accurate reflection of reality.10 This is especially so in bigger cities such as Amsterdam, Brussels, or London, and triggers skepticism, fears, and at times outright hostility towards newcomers.11 On the other hand, immigration is needed to balance out the negative effect of demographic changes in European societies. The economic benefits of immigration are well-researched and well-understood, and yet most societies of the Member States of the EU remain skeptical about immigration.12 Minorities and groups of immigrants residing permanently within formerly more homogeneous societies increasingly claim equal rights and respect: in short, recognition.13 They often do so against rather outspoken resistance of some members of the previously dominant group of nationals.14 These clashes lead to intense conflicts between emancipating immigrants, as well as their second- and third-generation descendants on the one hand, and members of society who claim to uphold national traditions and defend the latter against these ‘attacks’ on ‘their’ identity.15 The fierce argument unfolding in the Netherlands about ‘zwarte Piet’ [black Pete], the helper of Sinterklaas, is a good example for these kinds of conflict.16 Legitimate interests and calls for recognition made by minorities and immigrant groups are often questioned and pushed aside in such struggles for recognition. Racism, and its accompanying discrimination and segregation, is still an issue in the 21st century in Europe. However, it is not clear what 10

11

12 13

14

15

16

This does not mean that ‘white’ people will no longer form the majority, however, this group in itself is far from homogeneous, see G. Lübbe-Wolff, ‘Homogenes Volk – Über Homogenitätspostulate und Integration’ (2007) 27(4) Zeitschrift für Ausländerrecht und Ausländerpolitik, 121–127; C. Offe, ‘Homogeneity and Constitutional Democracy’ (1998) 6(2) The Journal of Political Philosophy, 113–141. M. Crul, ‘Super-Diversity vs. Assimilation: How Complex Diversity in Majority–Minority Cities Challenges the Assumptions of Assimilation’ (2016) 42(1) Journal of Ethnic and Migration Studies, 54–68. See Z. Bauman, Strangers at Our Door (Cambridge: Polity Press, 2016). Charles Taylor, ‘The Politics of Recognition’ (de politiek van erkenning), in A. Gutmann (ed.), Multiculturalisme (Amsterdam: Boom, 1994), pp. 25–73. For example, P. J. Margry and H. Roodenburg, Reframing Dutch Culture – Between Otherness and Authenticity (Aldershot: Ashgate, 2007). J. Habermas, Die postnationale Konstellation (Frankfurt am Main: Suhrkamp, 1998), p. 112; J. Cohen, ‘Changing Paradigms of Citizenship and the Exclusiveness of the Demos’ (1999) 14(3) Internationals Sociology, 245–268. The Guardian, ‘Black Pete Exposes the Netherlands' Problem with Race’, The Guardian, 5 December 2012, available at www.theguardian.com/world/2012/dec/05/black-peterace-netherlands, last accessed 6 January 2014.

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.   



exactly the discrimination ground ‘race and ethnic origin’, which can be found in EU legislation, entails.17 In the EU there seems to be a grave hesitation to call a ground for discrimination ‘race’ because of Europe’s particular history. Hence race has become a term covering in practice ethnic origin, but also cultural and religious discrimination.18 Also ‘nationality’ seems to be covered, in the specific situation that it is used as proxy for racial differentiations.19 At the same time, discrimination on the basis of race and ethnic origin is often ‘buried under layers of citizenship, residence, or religion’ as official grounds of differentiation in order to render it justifiable.20 This often leaves administrators, legislators, and victims of potential discrimination in limbo. On the one hand, their differential treatment is looking like (indirect) racial discrimination, while, on the other hand, it might be seen as a perfectly legal differentiation on the grounds of nationality or legal immigration status.21 What is clear, however, is that there is discrimination and that immigrants are the victim of it. This has the effect of ‘othering’ these groups further from the mainstream of society. Discrimination always points to social hierarchies in society and destroys opportunity structures, created by law, for immigrants. It further leads to re-ethnicisation, denial of recognition, and is a threat to self-esteem of whole portions of society who are shown that their worth is not appreciated.22 Such conflicts circling around the treatment of immigrants keep emerging despite efforts to accommodate immigrants. One should not overlook the developments and legislative changes made over the last

17

18

19

20 21

22

See Directive 2000/43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 No. L180/22. Anti-semitism covered under RED for example, not only in FED; M. Möschel, Law, Lawyers and Race – Critical Race Theory from the United States to Europe (New York: Routledge, 2014), p. 92. Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV ECLI:EU:C:2008:397; or Case C-83/14, CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia ECLI:EU:C:2015:480, both interpreting Directive 2000/43. Möschel, Law, Lawyers and Race, p. 187. M. Jesse, ‘Missing in Action: Effective Protection for Third-Country Nationals from Discrimination under Community law’, in E. Guild, S. Carrera and K. Groenendijk (eds.), Illiberal Liberal States: Immigration, Citizenship and Integration in the EU Discrimination under Community Law (Farnham: Ashgate, 2009), pp. 187–205. F. Heckmann, Integration von Migranten – Einwanderung und neue Nationenbildung (Wiesbaden: Springer, 2015), p. 235.

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

 , ,   

decades. Efforts to accommodate, integrate, and normalise the presence and permanent residence of immigrants have been made by almost all European societies. This should be acknowledged. For example, permanent residence permits and access to nationality through naturalisation are universally available as a matter of conditional right in the EU.23 Equality of treatment with the host population once immigrants have obtained any legal migration status is the norm.24 Additionally, policies protecting individuals from discrimination based on a variety of grounds, such as race, ethnic origin, religion, or nationality have been installed.25 At the same time and increasingly so, however, western societies witness rising nationalist populism which seeks to turn back these developments.26 Right wing populist groups are today part of several governments in the EU and some of them openly pursue the objective to erect ‘illiberal democracies’.27 Policies, intended to limit immigration and diversity, are propagated as an effort to protect national identity and welfare.28 Mostly, immigrants and asylum seekers from Islamic countries are targeted. Eventually, tighter regulation is making the acquisition of secure residence statuses and rights equal to those of nationals more difficult again.29 Mandatory integration trajectories flourish and are (ab-)used

23

24

25

26

27 28

29

R. Bauböck, Citizenship Policies in the New Europe (Amsterdam: Amsterdam University Press, 2009), see also Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ 2004 No. L16/44, 23 January 2004. M. Jesse, The Civic Citizens of Europe: The Legal Potential for Immigrant Integration in the EU, Belgium, and the United Kingdom (Leiden: Brill, 2017). D. Schiek, and L. Waddington, Cases, Materials and Text on National, Supranational and International Non-discrimination Law (Oxford: Hart Publishing, 2007). G. Lucassen and M. Lubbers, ‘Who Fears What? Explaining Far-Right-Wing Preference in Europe by Distinguishing Perceived Cultural and Economic Ethnic Threats’ (2012) 45 (5) Comparative Political Studies, 547–574; F. Yilmaz, ‘Right-Wing Hegemony and Immigration: How the Populist Far-Right Achieved Hegemony through the Immigration Debate in Europe’ (2012) 60(3) Current Sociology, 368–381. See the analysis of the Czech situation in Section 3.2 as an example. W. Kymlicka, ‘The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies’ (2010) 61(199) International Social Science Journal, 102; M. Bommes, ‘Die Planung der Migration’ (2009) 38(11) Zeitschrift für Ausländerrecht und Ausländerpolitik, 376–381. D. Acosta Arcarazo, The Long-Term Residence Status as a Subsidiary Form of EU Citizenship: An Analysis of Directive 2003/109 (Leiden: Martinus Nijhoff Publishers, 2011).

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.   



to limit immigration, particularly family migration30 Moreover, the prevention of immigration through the erection of insurmountable outer borders at sea, as well on land, seems to be the prime objective of the EU today.31 This friction between accommodating and limiting immigration and diversity has turned immigration and integration into a minefield for politicians in Europe and beyond. Governments, which appear to be stable, suddenly find themselves in trouble as fights about how to treat asylum seekers and how to accommodate or prevent new-arrivals erupt.32 The results are political piecemeal approaches addressing only symptoms, and shortsighted legislative changes driven by public sentiments and prejudice, without significant practical effect beyond the stigmatisation they cause.33 Interestingly, the left and the right of the political spectrum appear to agree on this assessment of the measures taken, albeit for different reasons.34 Meanwhile the challenges posed by segregation and ghettoisation of immigrant communities, or complaints about the existence of parallel societies, are real. The management of increasing diversity in a formerly (allegedly) homogeneous society will be one of the fundamental challenges for European societies in the future. Diversity will increase. Identifying legislative processes, legislation, and administrative or judicial interpretations which have led to practices which, deliberately or not, drive immigrants and receiving society further apart, while offering some indications how such processes of ‘othering’ can be overcome in the above-mentioned context, is the main objective of this book. 30

31

32 33

34

Y. Pascouau and T. Strik, Which Integration Policies for Migrants? Interaction between the EU and Its Member States (Nijmegen: Wolf Legal Publishers, 2012); M. Jesse, ‘Inburgering in het buitenland: Vraagtekens bij rechtmatigheid vanuit Europees perspectief’, (2012) 4(4) Asiel & Migrantenrecht, 202–206; K. Groenendijk, ‘Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy?’ (2011) 13(1) European Journal of Migration and Law, 1–30; S. Wallace Goodman, ‘Controlling Immigrants through Language and Country Knowledge Requirements’ (2011) 34(2) West European Politics, 235; R. van Oers, E. Erbsoll, and D. Kostakopoulou, A Redefinition of Belonging? Language and Integration Tests in Europe (Leiden: Martinus Nijhoff, 2010); M. Kau, ‘Sanktionsmöglichkeiten zur Durchsetzung von Integrationsanforderungen‘ (2007) 27(5–6) Zeitschrift für Ausländerrecht und Ausländerpolitik, 186; K. Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’ (2004) 6(2) European Journal of Migration and Law, 111–126. See V. Moreno-Lax, Accessing Asylum in Europe – Extraterritorial Border Controls and Refugee Rights under EU Law (Oxford: Oxford University Press, 2017). As happened in Germany in June/July 2018. C. Murphy, Immigration, Integration and the Law – The Intersection of Domestic, EU and International Legal Regimers (London: Routledge, 2013), p. 291ff. Kymlicka, ‘The Rise and Fall of Multiculturalism?’, 97–98.

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

 , ,   

1.3

Structure

The book is divided into five thematic parts. Part I, consisting of Chapters 2–5, will focus on how ‘otherness’ is constructed from the perspective of the law. The objective of this part is to show how ‘otherness’ flows from immigration and asylum legislation that is, on first sight, neutral. Questions answered are how societies are construed, what the nation state’s role is in structuring and defining societies, and who, legally spoken, is ‘the other’ in a nation state. Part I will also try to shed some light on processes of the devaluation and dehumanisation of immigrants as (legal) ‘others’. Part II, comprising Chapters 6–10, will explain how the dichotomy of citizen versus foreigner, which marks the latter as the automatic legal ‘other’ to the citizen in nation states, functions in practice in the European Union. It addresses the question of, inter alia, whether all foreigners (non-nationals) or only those foreigners without legal status are considered ‘other’. Above all, questions like which immigrants are considered ‘the other’ and which groups of immigrants are considered part of ‘us’, and how is this visible in the law, will be answered. Specifically, the part will answer questions about what rights, residence permits, and procedures are available for which groups of immigrants and their families, and in how far they are equal to the rights of nationals. Part III, which includes Chapters 11–13, then introduces the legal situation after the so-called refugee (policy) crisis of 2015. Refugees and asylum seekers are different from other immigrants. Their legal situation is defined not only by laws of nation states or the EU, but also by norms of international law. It is interesting how states react to the inflow of asylum seekers with their discretion vastly limited, while, at the same time, asylum seekers and refugees are considered ‘the other’, maybe even more than any other group of migrants in public discourse. Part III will seek to display what the underlying causes, public discussions and narratives for awarding certain groups of asylum seekers a status rather quickly while others are denied such opportunity. In other words, what are the mechanisms with which the law amplifies or fights the ‘othering’ of migrants in the context of asylum. Part IV, made of Chapters 14–16, addresses the ‘othering’ of immigrants and EU citizens exercising their free movement rights in the EU. Of course, no such analysis would be complete without considering Brexit. In three chapters, this part of the book looks at how EU law itself leads to the ‘othering’ of Citizens of the Union, a group which has

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. 



traditionally a strong claim to equal treatment deriving from EU law itself. The differentiation of EU nationals, as will be shown, is based on economic activity and wealth. All parts and the chapters therein focus on how law ‘others’ immigrants, or how differentiations within migration law creates different legal realities for different groups of immigrants. There will be interesting parallels and overlaps in the mechanisms of ‘othering’. These will be picked up in the concluding chapters contained in Part V (Chapters 17 and 18) of the book.

1.3.1 Part I: Making the ‘Other’ – The Construction of ‘Otherness’ In four chapters, Part I will try to decipher the meaning of ‘othering’ and ‘the other’ in the context of immigration and law. In Chapter 2, Moritz Jesse will unpack the phenomenon of ‘othering’ as such, and through the law in a nation state, wherein foreigners are automatically the legal ‘other’. Jesse will then focus on the disruption of the nation state paradigm by EU integration, in particular EU free movement rights and EU migration law, which has profound consequences on how legal ‘othering’ works in the EU. This analysis will serve as groundwork for the parts and chapters that follow. In Chapter 3, Helena Hofmannová and Karel Řepa will explain how the rise of anti-liberal politics in Europe triggered changes to human rights discourse and views on human dignity. This has pushed the development of a new and anti-liberal delimitation between ‘us’ and ‘them’ in European democracies, wherein immigrants are construed as an illiberal threat who need to be guarded against, rather than granted rights. Hofmannová and Řepa will show how shifting political ideologies can lead to the quick de-liberalisation of constitutional principles. In Chapter 4, Maartje van der Woude will turn to legal practices at the border and look at the link between ‘bordering’ and ‘othering’. The border is the place where differential treatment of nationals and foreigners is most tangible. Van der Woude will conclude that in the EU’s borderless ‘Schengen Area’ the objective to keep the ‘crimmigrant other’ out leads to a situation wherein borders and border-controls are now no longer confined to the outer EU border but happen virtually everywhere. This also means that the tangible differentiation between insiders and outsiders, which usually occurs at the border, can now occur everywhere in the EU.

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

 , ,   

In Chapter 5, Natalie Welfens and Asya Pisarevskaya look what happens when nation states can select refugees before they present themselves at the border. They will provide a panorama and analysis of selection criteria for humanitarian admission and resettlement in Europe to show which categories of refugees are considered eligible for resettlement and who is considered unfit for such programmes. Welfens and Pisarevskaya will show that all 21 programmes for refugee resettlement in 14 EU Member States analysed in their work officially prioritise vulnerable cases as the main criterion of selection. In practice, however, the selection of refugees for resettlement depends on welfare, security, and cultural concerns of the State along with of humanitarian grounds. With these four chapters, Part I shows how ‘otherness’ is construed and how it is finding its way in the application of seemingly neutral regulation. The theme connecting all chapters is that States create a narrative of protection from foreign risks in the form of immigrants and draft laws that are meant to curtail this risk. The foreigner is made a ‘risk’ ‘other’ rather than a future member of society.

1.3.2 Part II: The Operation of Legal ‘Othering’ and the National–Foreigner Dichotomy in the EU In Part II, five authors will deal with the operation of ‘othering’ in daily legal and administrative practice. Clíodhna Murphy, in Chapter 6, shows how an equality-based approach led to increasing rights for foreigners under national constitutional law. Traditionally constitutions can be seen as defining some sort of formal and legalistic national identity. Looking at the example of Ireland, she shows that this will not do away with the classic differentiation of foreigners and citizens, however, that immigrants are ‘less’ ‘other’ now under national law than they were before within the legal system created by sovereign nation states. The example of Ireland is particularly interesting in this regard as the constitution was conceived of as a relatively nationalistic and catholic constitution, of which the interpretation changed against the background of a changing society that had become more diverse, which led to some form of cosmopolitan constitutionalism. In Chapter 7, Narin Idriz turns to EU legislation and how it creates hierarchies of privilege and ‘otherness’. She explains how some groups of foreigners are closer to equal treatment than others, and how this influences their standing in the receiving society. Some groups, such as those who are economically strong, have clear advantages, while others, such as

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. 

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economically weak immigrants, are actively disadvantaged. Interesting hierarchies of ‘othering’ emerge when comparing rights to reside and remain, family life, and obligations to partake in integration courses for immigrants from western/non-western origins, or wealthy/non-wealthy backgrounds. In Chapter 8, Gizem Kolbaşı-Muyan then examines the practical and personal side of the law and its application. She shows that the effects of EU and national migration law live on for generations and also affect those who did not immigrate themselves but are, for example, the sons and daughters of immigrants. Looking at policies of integration and family reunification for second generation Turks in the Netherlands, she reveals how the restrictive application of the law, which is on paper open for immigrants, and the deliberate delay of proceedings by the Dutch Immigration and Naturalisation Service function as camouflaged measures of immigration control, which makes second and third generation Dutch-Turks feel unwelcome and alienates them from Dutch society, often exactly at that moment when these groups start to feel like they belong in the Netherlands. Kathrin Hamenstädt, in Chapter 9, will investigate the rules governing expulsions and entry bans in the EU, which are arguably the ultimate indicator for who is considered part of the receiving society and who is not. Only someone who is safe from expulsion is truly no longer the ‘other’. Following the same legal categories of immigrants as in the preceding chapters, it seems that there are vast differences in the protection from expulsion. However, no foreigner can reach complete protection from expulsion, even after decades of residence and permanent residence status.35 Alienation and the legal reality that equality with the receiving population cannot be achieved despite very long periods of residence and regardless the ‘status of inclusion’ is providing proof that immigrants will partially always remain the ‘other’. Karin de Vries will, in Chapter 10, then look at the most decisive legal reality immigrants face all over the world, i.e. discrimination or differential treatment based on grounds of nationality. Without differentiations on grounds of nationality, immigration regulation is unthinkable, and 35

This insecurity increasingly extends to naturalised foreigners; who could be stripped of their nationality in certain circumstances under national laws, such as involvement in terrorist organisations abroad, instead of criminal prosecution; see Lucia Zedner, ‘Citizenship Deprivation, Security and Human Rights’ (2016) 18(2) European Journal of Migration and Law, 224.

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

 , ,   

hence the chapter does not plead for making such differentiation redundant. However, drawing from a non-stigmatisation approach to discrimination, in which not legal or biological attributes but social stigmas and negative labels are identified as the core reason for the excluding consequences of discrimination, the chapter argues that the inclusive features of nationality as an equaliser in a polity should be kept while excluding stigmas on foreign nationality must be overcome. In its five chapters, Part II zooms in on the status of immigrants as legal ‘other’ in nation states and the complications EU integration brought to this paradigm in practice. It will show that the operation of national (constitutional) rules, the application of regulation by national administrations, and European legislation, can all lead to alienation as well as inclusion of immigrants in the process of acquisition or loss of residence rights.

1.3.3 Part III: After the Arrival of the ‘Others’ – Reactions to the ‘Refugee Crisis’ of 2015 In three chapters, Part III will look for intentional or unintentional processes of ‘othering’ after the so-called refugee (policy) crisis in Europe in the year 2015. In the reaction to the arrival of many asylum seekers from the middle east in a short time, many traits which characterise the asylum policy of the EU and its Member States can be seen. Chapter 11, by Helena Segarra will explain how reception facilities in Austria and Italy, which are trying to include newcomers through rigid measures, in practice complicate the participation of refugees in the receiving society. Looking at the ‘camp’ as the manifestation of geographical ‘othering’, Segarra shows how the facilities separate asylum seekers from the receiving society not only physically but also through a host of bureaucratic procedures and requirements. The separation emphasises and maintains the sentiment that refugees are and cannot be seen or treated as future members of the receiving society. Chapter 12, by Emiliya Bratanova van Harten, looks at the practice of non-reception of asylum seekers in Bulgaria, which functions as an example for many Eastern European States. While such a policy approach manifests itself through the absence of any meaningful reception policies, it achieves equal results in separating newcomers from the receiving society as the practices described in the preceding chapter. Bratanova van Harten describes a laissez-faire approach to integration, maintained by the State, which consists of only half-hearted voluntary

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. 

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reception measures. Asylum seekers, recognised refugees, and other immigrants are ignored as a deliberate policy choice not to recognise the presence of newcomers to society and in order to preserve an ethnocultural image of the nation. As in other Eastern-European States, the Bulgarian authorities remain unmoved by the legitimate interest of immigrants to recognise them. In Chapter 13, Sonia Morano-Foadi, Clara Della Croce, and Peter Lugosi describe how the UK discharges its legal obligation to facilitate refugees’ engagement with work. UK efforts to orientate and integrate ‘newly settled’ individuals from Syria into the employment market are rendered incoherent through various organisations and actors. Ultimately, integration into the labour market is achieved by diverse networks of organisations counterbalancing State actions. Overall, the chapters of Part III provide insights into how processes which apply to refugees and asylum seekers after their arrival keep them at a distance from the receiving society, at times against deliberate objectives of legislation itself.

1.3.4 Part IV: ‘Othering’ in the EU Part IV, in three chapters, looks at economic ‘othering’ within the EU. It will cover the situation of EU citizens, who traditionally enjoy the most robust and developed rights to equal treatment available to immigrants in Europe. However, also for this group, there are clear mechanisms of ‘othering’, usually based on economic strength. Before looking at economic ‘othering’ in detail, Dora Kostakopoulou, in Chapter 14, describes how EU citizens living in the United Kingdom and EU citizens-qua-UK nationals living in other Member States following the referendum on the UK’s continued membership of the EU on 23 June 2016 became ‘the numbered’ ‘others’. Their identities were redefined overnight not by them, but by state authorities and their co-EU citizens. The process of ‘othering’ of EU citizens started several years before the referendum in 2016 and accumulated in unexpected insecurities. This leads to strong feelings of alienation and a sensation of ‘othering’, despite the fact that the legal situation has not changed, and still might not change at all in the future. In Chapter 15, Moritz Jesse and Daniel Carter describe the ‘othering’ of economically inactive EU citizens and their exclusion from the very scope of application of EU law. After a series of judgments by the Court of Justice of the EU, economically inactive EU citizens seem to be

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

 , ,   

excluded from the scope of application of EU law altogether. This development has the potential to change the legal situation of such individuals and turn formerly protected EU ‘insiders’ to excluded legal ‘others/outsiders’ within EU law. The chapter first introduces the state of the art as regards economic ‘othering’ of EU citizens and then proceeds to mark developments, which can be considered inevitable in the future, and which will further complicate the legal situation of economically weak EU citizens. In Chapter 16, Daniel Carter will then analyse the situation of EU workers who have relied on their free movement rights and increasingly find themselves in low wage, exploitative, and precarious employment. Carter looks at current phenomena such as flexible employment contracts, part-time work, and bogus self-employment, as well as advances in automation and technological innovation, and the rise of the sharing economy, to see how workers in the EU increasingly find themselves excluded from the rights and residence security they formerly enjoyed under EU law. Paradoxically, it is claimed that the introduction of EU citizenship status actually resulted in a weakening of EU worker status and excludes greater numbers of economically active migrants. Part IV of the volume deals with an area of law where individuals with the nationality of one EU Member State, i.e. Citizens of the Union, traditionally have the strongest claims to equality and the least risk of legal exclusion through EU free movement and EU citizenship rights. Be that as it may, recently also in this area of law, excluding tendencies manifested themselves in the form of Brexit and economic ‘othering’.

1.3.5 Part V: European Societies, ‘Otherness’, Migration, and the Law The objective of Part V is the critical reflection on the issues dealt with in the previous parts of the book. Daniel Thym, in Chapter 17, reflects on the approach underlying the contributions to this volume highlighting open research questions for the future. The chapter addresses the linkage between legal developments and broader debates to showcase scenarios wherein legal rules are not influenced by discursive ‘othering’ or even serve as a counterpoint securing standing and rights of groups ‘othered’ in public discourse. From a methodological perspective, this chapter presents different options on how to integrate interdisciplinary impulses into doctrinal analyses by combining the ‘negative’ critique of ‘othering’ with a ‘positive’ reconstruction of legal material. The chapter concludes

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. 



with an argument that one should not equate any form of migration control with ‘othering’ and that one ought to enquire, rather, to what extent the motives behind policies or legislation reflect degrading or exclusionary tendencies. In Chapter 18, Moritz Jesse focuses on the natural counterpart to ‘the other’, namely ‘us’. Based on examples mentioned in the preceding chapters, Jesse reflects on the character of European receiving societies. The focus will be how far ‘othering’ is done deliberately or a side-product of legislation. The final part of the chapter will focus on questions on how to include minorities and how to accommodate differences between receiving societies and newcomers better.36 36

Y. N. Soysal, Limits of Citizenship – Migrants and Postnational Membership in Europe (Chicago: Chicago University Press, 1994); J. Habermas, ‘Strijd om erkenning in de democratische rechtstaat’, in A. Gutmann (ed.), Multiculturalisme (Amsterdam: Boom, 1995), pp. 141–144; L. Lucassen, ‘Assimilation in Westeuropa seit der Mitte des 19. Jahrhunderts: Historische und histographische Erfahrungen’, in M. Bommes, R. Münz, and K. J. Bade (eds.), Migrationsreport 2004 (Frankfurt am Main: Campus Verlag, 2004).

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PART I Making the ‘Other’ – The Construction of ‘Otherness’

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2 The Immigrant As the ‘Other’          This chapter is divided into four sections. The first deals with mechanisms of ‘othering’. These concern social interactions and dynamics, which explain why specific groups are seen, and treated, as the ‘other’. The second section then puts these findings in the context of the law. It will be shown that the starting point for legal differentiation between members of a receiving society and immigrants is the differentiation between national and/or citizen on the one hand, and foreigner on the other. Legally spoken, this paradigmatic demarcation line forms the very basis for ‘legal othering’ in nation states. However, a nation state could not function often without this systemic division. This section also explains why immigrants are still considered an abnormality, elements that do not belong and therefore disrupt the functioning of the nation state. This basic dichotomy of national versus foreigner, however, is challenged in the European Union. In the third section it will be explained how free-movement rights and EU citizenship have created more sophisticated legal differentiations. This disruption influences the construction of legal ‘otherness’ of immigrants in the EU. After these theoretical insights on how the law and the system within which it operates in the EU, and how its Member States ‘others’ immigrants almost naturally, the fourth section will then focus on how immigration law itself, thus the law that determines the room for manoeuvre of immigrants, often works as an amplifier for ‘othering’.

2.1 ‘Othering’ As the Discursive Differentiation from a Collective-Self 2.1.1 Who Is the ‘Other’? – Different from ‘Us’ It is only when we meet someone of a different culture from yourself that you begin to realize what your own beliefs are.1 1

George Orwell, The Road to Wigan Pier (New York: Harcourt, Brace and Company, 1958), p. 197, as quoted by Liav Orgad, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (Oxford: Oxford University Press, 2015), p. 3.

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    ‘’

The ‘other’ and ‘otherness’ depends on the counter image of ‘a self’, ‘the us’.2 ‘Otherness’ is discursive and constructed,3 which makes it separate from ‘difference’ which ‘belongs to the realm of fact’.4 And indeed, ‘otherness’ can be defined as the result of a discursive process by which a dominant in-group (‘Us’, the Self ) constructs one or many dominated out-groups (‘Them’, Other) by stigmatizing a difference – real or imagined – presented as a negation of identity and thus a motive for potential discrimination.5

In this process, the differentiation between in- and out-group often relies on categories, such as race, origin, religion, culture, nationality, or wealth. Crucial is a shared understanding that the ‘other’ is different from oneself, in other words, the in-group has to define a common identity which sets it apart from the out-group. ‘“Otherness” and identity are two inseparable sides of the same coin. The “other” only exists relative to the Self, and vice versa’,6 ‘(t)he social construction of otherness implies the social construction of identities’.7 This difference separating the in- and out-group is hardly ever described in positive terms. The ‘other’ is usually seen inferior to oneself. As stated in the Encyclopedia of Human Geography: Psychoanalytic theories suggest that the outside segment of the binaries – self/other and same/different – often is feared, loathed, or held as inferior. Thus, people often seek to expel, reject, abject, or exclude what is taken as other, outsider, or different, for instance people who are out of place from where the mind’s prevailing order wants them. The term othering often is used for these exclusionary processes. (. . .)8

‘Othering’ is thus a discursive group process wherein the in-group has the power to ascribe negative attributes to an out-group. The discursive nature of this process and the local power relationships in place between

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4 5 6 7

8

See J.-F. Staszak, ‘Other/Otherness’, in R. Kitchin and N. Thrift (eds), Encyclopedia of Human Geography (Amsterdam: Elsevier, 2009), p. 43. See Section 4.2 by van der Woude, referring to N. Elias and J. L. Scotson, The Established and the Outsiders (Dublin: University College Dublin Press, 1965). See Staszak, ‘Other/Otherness’, p. 43. Ibid. Ibid. Didier Fassin, ‘The Social Construction of Otherness’, in S. Bonjour, A. Rea, and D. Jacobs (eds.), The Others in Europe (Brussels: Editions de l’Université Bruxelles, 2011), p. 124. G. Myers, ‘Other/Otherness’, in B. Warf (ed.), Encyclopedia of Human Geography (Thousand-Oaks: Sage, 2006), p. 345.

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. ‘’   



groups determine who, at a specific point in time, and in what social and geographical context is the ‘other’: Societies often seek to separate same from other, whether the dividing lines be based on race, class, gender, or other categories. Like the processes in our heads, these social processes of separation have ambivalent outcomes. People in one place, of course, can be construed as different in another place (. . .)9

It is thus the construction of these differences at a specific time and place that decide whether ‘othering’ occurs.10 A quick look into the chapters of this book displays that the construction of such differences is thus dependent on the context at a specific time and place . Hofmannová and Řepa describe in Chapter 3 how in eastern Europe deliberate policies and politics lead to the stigmatisation as a threat of immigrants and refugees from middle eastern mostly Muslim countries.11 At the same time, as Kostakopoulou shows in Chapter 14 on the effects of the Brexit referendum and developments thereafter, EU immigrants, foremost from eastern Europe, were depicted as a threat to the British society.12 It is not hyperbole to describe the depiction of eastern Europeans in the UK in the run-up to the Brexit referendum as an example of ‘degenerate whiteness’.13 They were often depicted as poor criminals who cannot live in the UK without posing a threat to the native population. The same group of people, dominant in their own states of origin was, simultaneously, part of the out-group and segregated as ‘European other’ in a different setting elsewhere in the EU.14 What the two scenarios have in common is the politicisation of migration and immigrants in the national polity, and the resulting stigmatisation of the ‘other’ as a threat, but ‘(. . .)who the others are and what the self is cannot be taken for granted’.15 Central to the construction of ‘otherness’ is the ‘asymmetry in power relationships’, wherein ‘only the dominant group is in a position to impose the value of its particularity (its identity) and to devaluate the particularity of others (their otherness) while imposing corresponding 9 10

11 12 13

14 15

Ibid. M. Ajzenstadt and A. Shapira, ‘The Socio-Legal Construction of Otherness under a NeoLiberal Regime – The Case of Foreign Workers in the Israeli Criminal Courts’, (2012) 52 (4) British Journal of Criminology, 687. See Sections 3.2 and 3.3 by Hofmannová and Řepa. Section 14.2.1 by Kostakopoulou. B. Anderson, Us & Them – The Dangerous Politics of Immigration Control (Oxford: Oxford University Press, 2013), pp. 44–45. Section 14.2.2 by Kostakopoulou. Fassin, ‘The Social Construction of Otherness’, p. 116.

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

    ‘’

discriminatory measures’.16 As Rea et al. have written, identity and therefore ‘othering’ also is today ‘no longer solely defined by his or her place on the labour market or in the social hierarchy’ but is increasingly seen as ‘cultural and ethnic identity’.17 In turn, this means that ‘(. . .) social tensions and political passions produced by immigration are mostly linked to issues of belonging and identity (. . .)’ as well.18 This is important to remember when ‘otherness’ and ‘othering’ is placed into the context of the law hereunder.

2.1.2 Who Are ‘We’? – Better than the ‘Other’ ‘You’ and ‘I’ become ‘we’ when a ‘they’ appears.19

‘Othering’ as a discursive process depends on the dichotomy of an ingroup, which defines itself to be different from the out-group. Upon closer inspection, the differentiation between out-group and in-group amounts to little more than circular reasoning: The out-group is the ‘other’ because it is different from the in-group as it does not conform to ideals and identity the in-group attributes to itself. The in-group has the power to enforce its own views. This definition of difference almost always involved value judgments to the detriment of the out-group, and, as Rea et al. have shown, this occurs increasingly along cultural and/or ethnical lines.20 As van der Woude reminds us in Chapter 4, speaking about the ‘demonization and criminalization of alien others’, the ‘othering’ of groups in society fulfils an ‘important social function’, namely to tie the in-group together in the belief of ‘moral superiority over the deviant “other”’.21 In-groups need a ‘suitable enemy’ to unite them.22 Human 16 17

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See Staszak, ‘Other/Otherness’, p. 43. A. Rea, S. Bonjour, and D. Jacobs, ‘Introduction’, in S. Bonjour, A. Rea, and D. Jacobs (eds.), The Others in Europe (Brussels: Editions de l’Université Bruxelles, 2011), p. 9. Ibid. S. P. Huntington, Who Are We? The Challenges to America’s National Identity (New York: Simon & Schuster, 2004), p. 24, as quoted by Liav Orgad, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (Oxford: Oxford University Press, 2015), p. 3. Rea et al., ‘Introduction’, p. 9. Section 4.2 by van der Woude, referring to R. Girard, La violence et le sacré (Paris: Grasset, 1972). Section 4.2 by van der Woude, referring to N. Christie, ‘Suitable Enemy’, in H. Bianchi and R. van Swaaningen (eds.), Abolitionism: Toward a Non-repressive Approach to Crime (Amsterdam: Free University Press, 1986), 42–54.

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. ‘’   



history is full of examples where rulers, governments, and social groups successfully created narratives which ‘other’ a complete group of people. This construction of ‘otherness’ can lead to devaluation and possibly a complete dehumanisation of the out-group. Todres writes that usually ‘the dominant group depicts the other as barbaric, amoral, and of lesser intelligence’.23 These ‘others’, despite their inferiority, paradoxically then still form a threat and force the in-group to unite and face this peril. A quick look into the bestseller lists in Europe over the last years confirms that immigrants, especially those from Islamic countries, are in fact depicted as carrying these exact characteristics.24 Such degeneration of groups is often following the lines of subconscious racism and is increasingly based on alleged differences in culture, religion, and ethnic identity.25 Prejudice is a driving force behind this form of ‘othering’, which is, in turn, fed by the lack of contacts between immigrants and the receiving society.26 A vicious circle is spinning into action, wherein groups living closely together in one geographical space start to talk about each other rather than with each other. Part of the process of ‘othering’ is thus to turn, deliberately or not, the members of the out-group into some form of lesser beings.27 After such dehumanisation, it is easier to treat the out-groups ‘less humanely’,28 or, in the case of immigrants, to enact harsher laws and procedures to keep them at a distance.29 Again, the latest developments, such as denying asylum seekers rescue facilities on the Mediterranean Sea in order to deter their movement while exclusively talking about these human beings as risks that need to be managed, fit in this narrative.

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J. Todres, ‘Law, Otherness, and Human Trafficking’, (2009) 49(3) Santa Clara Law Review, 614. See, for example, Thilo Sarrazin, Deutschland schafft sich ab. Wie wir unser Land aufs Spiel setzen (München: DVA, 2010); or Michel Houellebecq, Soumission (Paris: Flammarion, 2015). Rea et al., ‘Introduction’, p. 9. F. Heckmann, Integration von Migranten – Einwanderung und neue Nationenbildung (Wiesbaden: Springer, 2015), p. 203ff. See the analysis of the Czech situation as an example in Sections 3.2 and 3.3 by Hofmannová and Řepa, who explain how immigrants are turned into a threat in public and political discourse; see also van der Woude in Section 4.2 referring to Z. Bauman., Modernity and the Holocaust (Ithaca, NY: Cornell University Press, 1989), and Z. Bauman, Wasted Lives (Cambridge: Polity Press, 2004). Todres, ‘Law, Otherness, and Human Trafficking’, p. 615. Heckmann, Integration von Migranten – Einwanderung und neue Nationenbildung, p. 220.

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    ‘’

The degeneration of the ‘other’ is typically counterbalanced by the glorification and construction of the self as an altruistic group, which is generally an enlightened source of good in the world,30 which further distinguishes the alleged distance between the in- and out-group: These conceptions of the Other have created a dichotomous understanding of the people that inhabit our world – that is, in the dominant discourse there are those ‘like us’ who are virtuous, just, intelligent and kind, and there are the distant ‘others’ who possess less in the way of intelligence, virtue, or any other positive attributes.31

Western States in particular tend to describe themselves as a ‘community of value’.32 In such a community, ‘good citizens’ live by and fight for fundamental, liberal core values.33 These values are usually depicted as common shared norms codified in a constitutional document and generally include the protection of fundamental human rights, democracy and minority protection, equality of men and women, tolerance, openness, and the rule of law.34 In other words, the in-group constructs the idea of a collective identity based on universal values, which it then uses as the glorified yardstick against which the behaviour of the ‘other’ is measured.35 This narrative of a collective identity is so strong that differences within the in-group are conveniently overlooked.36 The result of this comparison is clear; the action of the dominant in-group is per definition humane. Often, questionable and illiberal action is justified by the defense of liberalism against the threat posed by ‘barbarians’.37 And indeed, there seems to be an automatic bias to see actions towards groups considered the ‘other’ as justified, regardless of consequences. The actions aimed at deterring irregular migration into the EU, which is undoubtedly causing a lot of human suffering and deaths, are depicted

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Todres, ‘Law, Otherness, and Human Trafficking’, p. 617, referring to Emily Pronin, Daniel Y. Lin, and Lee Ross, The Blind Spot: Perceptions of Bias in Self versus Others, (2002) 28(3) Journal of Personality and Social Psychology, 369–370. Todres, ‘Law, Otherness, and Human Trafficking’, p. 620. Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 2. Ibid., pp. 2–3. Compare the list of ‘values’ mentioned as foundations of the European Union in Art. 2 Treaty on European Union. Todres, ‘Law, Otherness, and Human Trafficking’, p. 616. See G. Lübbe-Wolf, ‘Homogenes Volk – über Homogenitätspostulate und Integration’ (2007) 27(4) Zeitschrift für Ausländerrecht und Ausländerpolitik, 121–127. A. Triandafyllidou, ‘National Identity and the “Other”’ (1998) 21(4) Ethnic and Racial Studies, p. 596.

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.  ‘’     

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as measures to protect the outer border of the EU against threats posed by foreigners, to prevent human smuggling, and ultimately to save lives.38 Also the encampment of those who do claim asylum in the EU in order to separate them from the receiving society, which Segarra calls ‘othering through space’ in Chapter 11,39 fits the narrative of an altruistic self, which is incapable of seeing or not wanting to see the harm caused by its actions.

2.2 The ‘Othering’ Of Immigrants and the Law 2.2.1 Pre-determined Power Relations between Receiving Society and Newcomers As introduced in this chapter, the discursive and contextual process of ‘othering’ depends on a power relationship which allows the in-group to impose its value judgments and its identity on the out-group. This power relationship is not as flexible and contextual as it might seem for immigrants who move to another State, because the law as it operates in nation states divides citizens from foreigners and as such ‘others’ immigrants from another State almost naturally. As will be introduced in Section 2.2.2, foreigners do not have rights; they are given rights through legislative and administrative processes in the receiving state. In other words, they are not naturally included in the polity that is the receiving nation state, which is defined by the possession of a common nationality, and which collectively decides about rules governing that polity, including immigration rules. Immigration is the process of the ‘arrival of the others’ and inevitably leads to interaction between the newcomer and the receiving society. The receiving societies will have to react to immigration and determine a stance toward the arriving immigrants. They do so with more or less sophisticated legal frameworks to administer, and provide a legal status, grant rights, and subject the arriving ‘other’ to various conditions. The law thus has extraordinary influence on the interaction between receiving society and immigrant. As Thym reminds us at the beginning of Chapter 17, relying on Foucault, ‘law is an instrument of government that

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This pattern of behaviour of seeking to protect the ‘enlightened homeland’ against ‘foreign peril’ extends to the selection of refugees for resettlement, as described in Chapter 5 by Welfens and Pisarevskaya. See Section 11.4 by Segarra

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

    ‘’

reflects and reinforces the prevalent political, social and normative preferences of a society’.40 Law can make implicit social ‘othering’ ‘explicit’ by codifying and regulating the interplay between newcomer and receiving society in a way that separates both sides.41 Law can also function as a tool to keep the ‘others’ at a distance despite their physical presence. Critical Race Theory asserts that the law is an essential tool to construct and subordinate minorities.42 While being a theory born out of the tense race relations in the United States and how the law and its administration institutionalises the dominance of whites, attempts have been made to show that also in the European context the law is in fact a tool to preserve a ‘White, Christian, male hegemony’ through a set of ‘seemingly neutral and objective laws and jurisprudence’.43 It should not be forgotten, however, that the law is also a tool to bring people together and create a formally level playing field for all.44

2.2.2 Foreigners and Immigrants As the Natural ‘Others’ in a Nation State Citizenship, or nationality,45 is the symbol and legal expression of belonging to a nation state. All non-citizens are non-members in this community and are, per definition, legal outsiders. Since the Peace-ofWestphalia, the organising unit which binds people together in a geographical space and awards citizenship is the nation state.46 Statehood is conditional upon territory, where a national population is permanently living. A government will have to have effective control over territory and population. This control and the prohibition of States to interfere in the domestic affairs of another State is the essence of state sovereignty.47 40

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See Section 17.1 by Thym, referring to Michel Foucault, L’Ordre du discours (Paris: Gallimard, 1971). Compare Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 178. M. Möschel, Law, Lawyers and Race – Critical Race Theory from the United States to Europe (New York: Routledge, 2014), p. 3. Ibid. See Section 17.2.3 by Thym. Both terms will be used for the same legal concept in this book. For information on how those two terms could be defined separately and in relation to each other, see M. Jesse, The Civic Citizens of Europe: The Legal Potential for Immigrant Integration in the EU, Belgium, and the United Kingdom (Leiden: Brill, 2017), p. 33ff. See A. Favell, ‘Integrating Nations: The Nation State and Research on Immigrants in Western Europe’ (2003), in G. Brochmann (ed.), Multicultural Challenge (Comparative Social Research, Vol. 22) (Bingley: Emerald Group Publishing Limited, 2003), pp. 13–42. See definition of Statehood in M. Shaw, International Law (Cambridge: Cambridge University Press, 2003), p. 178ff.

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.  ‘’     



The bond between the state and the population is expressed by the conferral of citizenship, which is an exclusive prerogative of sovereign nation states. Citizenship then gives rise to a vertical bond between the individual and the state with a bundle of ‘reciprocal rights and duties’.48 Foreigners, i.e. non-citizens, cannot rely on this vertical bond of rights with the State where they are residing. According to T. H. Marshall, citizenship stands for full and equal membership in a community wherein all members enjoy equal rights.49 Foreigners are also not part of this horizontal bond between all citizens in a nation state which is expressed by their equality. Citizenship, in short, describes membership in a nation state and grants the ‘rights to have rights’.50 Foreigners are excluded from this membership despite their presence as immigrants in the State of residence. They are the natural, classic ‘other’ in a society defined by citizenship/nationality. The existence of nation states as the fundamental organising unit of the modern world is accepted and considered as the ‘natural’ state of affair despite its excluding features. What Triandafyllidou wrote in 1998 is still true today: Not only does the organization of the world in nation-states seem ‘natural’ but the whole perception by each individual of the surrounding world is based on the distinction between the ingroup, namely the nation, and the foreigners, those belonging to the other communities, the ‘others’.51

Part of the nation state is its people, the Staatsvolk, which is a surprisingly ancient concept with surprising legal relevance in today’s legal political discussions.52 The Staatsvolk consisting of citizens is the legal expression of a common ‘we’ within the borders of the sovereign nation state. All residents of a shared geographical space who are foreigners cannot be 48

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International Court of Justice, The Nottebohm Case (Liechtenstein v. Guatemala), Judgment of 6 April 1955, 1955 I.C.J. 4, para. 32. See T. H. Marshall, Citizenship and Social Class: And Other Essays (Cambridge: Cambridge University Press, 1950), or T. H. Marshall, Class, Citizenship, and Social Development (Garden City, NY: Anchor Book, 1965), p. 103. See US Supreme Court, Trop v. Dulles 356 us 86, 102 (1958); See also the discussion on the ‘right to have rights’ as a general human condtition by H. Arendt, Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973). Triandafyllidou, ‘National Identity and the “Other”’, p. 593. See on the problematic use of the concept of a national people, W. T. Eijsbouts, ‘Wir Sind Das Volk – Notes about the Notion of “The People” as Occasioned by the Lissabon Urteil’ (2010) 6(2) European Constitutional Law Review, 199–222.

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

    ‘’

members of the Staatsvolk. In democratic states the Staatsvolk elects a government. Foreigners are excluded from such elections unless the receiving state grants rights to participate in elections.53 This has, of course, repercussions on the self-image and loyalties of governments in their actions towards foreigners, especially when it is coupled with an ‘ethnic interpretation of nationality’ which at its core excludes non-native elements as members of the nation, as Bratanova van Harten explains in Chapter 12, on the reception of asylum seekers in Eastern Europe.54 The systemic exclusion of foreigners from the nation state has practical consequences. As a rule of public international law, States must admit their own nationals to their territory.55 They are a contrario not obliged to admit non-nationals. This rule, which according to the US Supreme Court would amount to a ‘maxim of international law’,56 is the foundation of all immigration control regimes set up by nation states seeking to keep out specific groups of non-nationals. Such a system of immigration control presupposes that it is legal for States to differentiate on the basis of nationality in the context of immigration policies. The differentiation on grounds of nationality will not only occur between foreigner and citizen, but also between different foreign nationalities. Elsbeth Guild has called this the ‘principle of permitted discrimination’ on grounds of nationality in the area of migration.57 Others have called nationalism ‘the most universally legitimate value in the political life of our time’, which allows for differential treatment of individuals with different nationalities.58 Nation States see themselves as sovereign gatekeepers who control the entry and residence of foreigners. And there is judicial backing for this stance. According to the European Court of Human Rights, it is ‘well-established international law’ and only subject to limitations under the ECHR and other treaty obligations, that ‘a State has the right to

53 54 55

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Ibid., pp. 202–204. Section 12.4 by Bratanova van Harten. C. Dauvergne, ‘Irregular Migration, State Sovereignty and the Rule of Law’, in V. Chetail and C. Bauloz, Research Handbook on International Law and Migration (Cheltenham: Edward Elgar, 2014), pp. 79–80. US Supreme Court, 18 January 1892, Nishimura Ekiu v. United States et al., 142 u.s. 651, p. 142. E. Guild, The Legal Elements of European Identity – EU Citizenship and Migration Law (The Hague: Kluwer Law International, 2003), p. 83; see also E. Guild and S. Peers, ‘Out of the Ghetto? The Personal Scope of EU Law’, in S. Peers and N. Rogers, EU Immigration and Asylum Law: Text and Commentary (Leiden: Martinus Nijhoff, 2006), p. 82. Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 178.

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.  ‘’     



control the entry of non-nationals into its territory’.59 However, as the Court states, the discretion of states is no longer absolute. As this book will show, this discretion is limited, for example, by international refugee law, the ECHR, or EU legislation. Additionally, as De Vries explains in Chapter 10, a different nationality might carry a stigma, which additionally ‘others’ the foreigner in the receiving society.60 This fundamental differentiation between citizen and foreigner in a nation state is not trivial. Even if foreigners were granted full equal rights thought immigration legislation,61 they would still be legally the ‘other’. They would remain the ‘abnormal’ case whereas the national would be the ‘normal’ comparator with reference to whom the foreigners’ rights would be determined. In other words, foreigners’ rights are expressed with reference to citizens’ rights. These rights can be equal, of course, but foreigners remain the legal ‘other’ to the citizen. In practical terms, this logic dictates that in daily life the first decisive questions to determine the legal situation of an individual is always about nationality, and then, when a foreigner is involved, about what level of equality and what level of difference with nationals that foreigner can enjoy. Examples for differential treatment expand from access to employment and social benefits, to the accessibility of credit and mortgages offered by financial institutions, from buying property, inheriting property, to being allowed to get married, just to mention a couple of examples. In all cases, legislation might determine specific procedures or documentation requirements for foreigners in a nation state which are different and usually more bureaucratic and burdensome than the ones in place for citizens.62 Difference of treatment regularly arises in situations of equal rights. There may be good reasons for each differential treatment in law, however it remains a treatment ‘other’ than that of nationals. Viewed from this perspective, the acquisition of citizenship is the ultimate removal of ‘otherness’. When foreigners naturalise, no more

59

60 61

62

ECtHR, 28 May 1985, Abdulaziz, Cabales and Balkandali, Nos. 9214/80, 9473/81, 9474/ 81, para. 67. See Section 10.4 by De Vries. Something like this actually did occur in South America through national constitutions, which provide rights for foreigners, see D. Acosta, The National versus the Foreigner in South America – 200 Years of Migration and Citizenship Law (Cambridge: Cambridge University Press, 2018). See about such procedures and ‘administrative othering’ in the context of second generation Dutch Turks in the Netherlands, Section 8.5 by Kolbaşı-Muyan.

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

    ‘’

legal differences remain with the receiving population.63 The naturalised citizen is, at least on paper, now a full member. He or she can then benefit from the vertical bond with the nation state and the horizontal bond between all citizens providing for equal rights, equal security, and equal treatment. However, naturalisation becomes increasingly insecure. More and more states adopted legislation allowing for individuals to be stripped of their citizenship when specific crimes such as terrorism or membership in a criminal/terrorist group abroad are committed. In cases of dual nationals, such stripping of citizenship is often done to deny return to the former citizen from abroad or to create a situation wherein such individuals can be expelled again. Critics have held that this form of stripping of citizenship would be ‘the contemporary equivalent of the medieval punishment of banishment’.64 Eventually, these measures indicate that even naturalisation might not be the end of the ‘othering’ of immigrants. In conclusion, citizens have rights when residing in the nation state of their citizenship whereas foreigners get rights provided by the institutions of the nation state of residence. There is no automatic bond between the foreigner and the state. They have no right to have rights and depend on the rights granted to them. As such, foreigners are the legal ‘other’ in a society that is defined by a common nationality. Legal ‘otherness’ can, from this point of view, be described as the difference of rights between (groups of ) foreigners and citizens.65 The first part of this chapter explained that ‘othering’ always depends on a steep power relationship between the in- and out-group. This power relationship is inherent in the relationship of receiving society and immigrant given the way the law operates under the paradigm of the nation state.

63

64

65

Heckmann, Integration von Migranten – Einwanderung und neue Nationenbildung, p. 119ff. C. Dauvergne, The New Politics of Immigration and the End of Settler Societies (Cambridge: Cambridge University Press, 2016), pp. 188–189. Yet, as Dauvergne mentioned, such criminal sanctions for immigrants bring migration and the control of migration within the scope of criminal law. As a result, this also makes all (western) principles designed to protect the individual against arbitrary and disproportionate action of the state apply. This will in turn limit the capability of said provisions. Interestingly enough, also the potential for integration can be described in this exact way, both concepts are different sides of the same token, see Jesse, The Civic Citizens of Europe.

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. ‘’    



2.3 ‘Othering’ of Immigrants and European Union The loss of influence over issues formerly part of the canon of sovereign rights of the state, such as trade in goods, services, or capital movements, through globalisation and foremost European post-war integration, has turned immigration into the ‘last bastion of sovereignty’,66 which States defend fiercely. The border of sovereign states is seen as a place where the national territory as well as identity and culture are defended against foreign intruders.67 In political and public discourse, there is still an expectation that sovereign nation states can, or at least ought to be allowed to, govern immigration and admit or refuse individuals at their border based on criteria the nation state itself has determined through its own legislative process. European Union law, and in particular free movement rights in the EU’s internal market and Citizenship of the European Union, has ‘disrupted’ this situation. Often this has annoyed national policy makers.68 In fact, on closer inspection, many discussions before the Brexit vote and after the ‘refugee crises‘ of 2015 until today turn around the question of how far the Member States of the EU still can or ought to be able to govern their own borders. From this logic, the admission and acceptance of immigrants has become a yardstick for sovereign statehood,69 and the impression that no rights to govern own borders are left is presented as a loss of state sovereignty for which the EU is to blame.

2.3.1 EU Free Movement and Citizenship of the Union European free movement rights and EU citizenship have indeed created rights to move and reside in another Member State. In this European legal reality, EU citizens and those benefitting from EU free movement rights can rely directly on primary and secondary EU legislation when they move from one Member State to another. They are not dependent on national legislation granting them rights but derive their rights directly from EU law. In other words, they are bypassing national legislation.70 As soon as

66 67 68

69 70

Dauvergne, The New Politics of Immigration and the End of Settler Societies, p. 126. Compare the thoughts introduced in Section 4.3.1 by van der Woude. M. Jesse, ‘Disrupting and Annoying – EU Citizenship and EU Migration Law Destroying Old Habits of National Migration Policy Making’, in M. de Visser and A. P. van der Mei (eds.), The Treaty on European Union 1993–2013: Reflections from Maastricht (Antwerp: Intersentia, 2013), p. 407–428. Guild, and Peers, ‘Out of the Ghetto? The Personal Scope of EU Law’, p. 82. Jesse, ‘Disrupting and Annoying’, p. 411ff.

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

    ‘’

EU citizens can rely on EU law, they might enjoy more rights than are enjoyed by nationals in the Member State that they have moved to. The constellation wherein nationals, who cannot rely on EU law, have fewer rights than EU citizens is called reverse discrimination.71 This does not mean that there are no limits to rights enjoyed by EU citizens or those benefitting from EU free movement rules. Contributions in this volume deal with such scenarios.72 However, it is important to realise that the limits to these EU rights are set by EU law itself and defined, ultimately, by the Court of Justice of the European Union and not by the Member States and their institutions. It appears that it is no longer the traditional national versus foreigner dichotomy, which is decisive to determine the legal situation of immigrants, but a new dichotomy of national and third-country national, who both are still dependent on national legislation on the one side, and EU citizens who can rely on EU law directly on the other side. In this logic, EU citizens who fall within the scope of application of EU law have rights under EU law. They are part of the legal in-group under EU law, whereas the static citizen outside of the scope of application of EU law and foreigners from third countries both find themselves in the out-group, still dependent on national legislation.73

2.3.2 EU Migration Law The evolution of EU law has not stopped there, however. The EU’s Area of Freedom, Security, and Justice [AFSJ], which evolved from the Schengen area, created an area without internal frontiers and without internal border controls. The AFSJ also brought proper EU migration legislation, i.e. rules that govern inter alia entry, exit, residence, and return of thirdcountry nationals. Today, the EU has a patchwork secondary legislation in place governing or at least influencing the legal status of third-country nationals in all phases of their migration trajectory. Also, almost all categories of third-country nationals are covered within the scope of application of these rules.74 This has further limited the national law of

71

72 73

74

See, for example, V. Verbist, Reverse Discrimination in the European Union (Antwerp: Intersentia, 2017). See, for example, Chapter 15 by Jesse and Carter, and Chapter 16 by Carter. One qualification is necessary; in order to become an EU Citizen, one must be a national of the Member States, see Art. 20 TFEU. Jesse, ‘Disrupting and Annoying’, p. 418ff.

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. ‘’    



the Member States in its discretion to govern the status of foreigners in the EU. Third-country nationals now also potentially have directly effective rights that they can rely on if they fall within the scope of application of EU migration law. Also here, the CJEU has the final word about the interpretation of these rules. This sophisticates the differentiation and legal ‘othering’ of immigrants further. Citizens of the Member States who have not moved might now also be reversely discriminated against vis-à-vis third-country nationals who can rely on EU rules and regulations. The logic presented in the sections above is turned on its head; under EU law mobile EU citizens have rights and third-country nationals get rights. However, static nationals of the Member States usually fall outside the scope of application of EU law altogether. This all means that EU Member States, which not so long ago had full discretion to grant rights and determine the legal situation of immigrants, find their legal capacity to do so increasingly limited.75 In other words, Europe has become a ‘translocational and transnational space’76 wherein, legally spoken, ‘the old distinction between nationals and foreigners seems to have transformed itself into a triangular logic distinguishing nationals, EU citizens, and third-country residents’.77 Immigrants will, in the words of Groenendijk, ‘no longer be dependent on the discretion of national immigration authorities or at the mercy of national immigration law which is always influenced by the politics of the day’. Immigrants ‘are no longer only guests or foreigners, but persons with rights, even residence rights under EU law’.78 Whether this legal development and transfer of competence from the Member States to the EU has also led to ‘a reframing of existing identities’ of a ‘European We’, as a ‘supranational identity’ and a ‘nonEuropean Other’,79 still remains to be seen in light of recent developments such as Brexit, and rising skepticism about EU integration.80

75

76

77 78 79 80

Kees Groenendijk, ‘Categorizing Human Beings in EU Migration Law’, in S. Bonjour, A. Rea, and D. Jacobs (eds.), The Others in Europe (Brussels: Editions de l’Université Bruxelles, 2011), p. 31. F. Anthias, ‘Beyond Integration: Intersectional Issues of Social Solidarity and Social Hierachy’, in F. Anthias and M. Pajnik (ed.), Contesting Integration, Engendering Migration – Theory and Practice (Basingstoke: Palgrave, 2014), pp. 14–15. Rea et al., ‘Introduction’, p. 8. Groenendijk, ‘Categorizing Human Beings in EU Migration Law’, pp. 31–32. Rea et al., ‘Introduction’, pp. 8, 9. For thoughts on this, see Chapter 14 by Kostakopoulou.

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

    ‘’

What is clear is that the increase of power of the EU in the area of immigration is not universally welcomed. As Thym writes in Chapter 17, this frustration about EU competences and regulation can partially be explained by the fact that ‘supranational decision-making processes are loosely connected to public debates, which, notwithstanding rudimentary transnational conversations, continue to be dominated by the discursive framework of the nation state as a result of language barriers, political organisation and media infrastructure’.81 There is a lack of effective feedback loops linking national social and political discourse to decision making on the EU level, which further increases the feeling of loss of sovereign discretion in the field of immigration on the national level.82 In conclusion, the question of who is in the in- and who is in the outgroup has become complicated in the European Union. EU integration, first through the development of the internal market with its free movement rights, then through EU citizenship, and finally through the development of the AFSJ, has led to a situation wherein only third-country nationals who fall outside of the scope of EU law and static EU citizens who have not moved to another member state fall under the classic citizen–foreigner dichotomy described here and see their rights exclusively determined by national law. For all other individuals, immigrants or not, the decisive differentiation in legal terms is whether one is an EU citizen or a third country national in order to establish the applicable legal status.83 This does, however, not mean that in daily administrative practice this dominance of EU immigration rules is already a fact. As Groenendijk stated ‘(. . .) it may take years before the persons entrusted with the implementation of EU law (. . .) learn about EU law and start taking it seriously in their work’.84 This change of mindset would have taken ‘approximately 10–20 years for Community rules on freedom of workers, and “more than 15 years” for Turkish citizens resident in the EU’.85 Be that as it may, the ultimately binding and decisive rules can today be found in EU legislation and no longer in national law alone. Table 2.1 seeks to summarise the above-mentioned legal developments. 81 82 83

84 85

See Section 17.2 by Thym. Ibid. Anthias, ‘Beyond Integration: Intersectional Issues of Social Solidarity and Social Hierachy’, pp. 14–15. Groenendijk, ‘Categorizing Human Beings in EU Migration Law’, p. 23. Whereas the latter can be questioned given the account on current administrative practices as regards the treatment of Turkish Dutch in the Netherlands, see Chapter 8 by Kolbaşı-Muyan.

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.      ‘’



Table 2.1 Legal ‘othering’ in the EU Paradigm Classic EU Free Movement

EU Area of Freedom, Security, and Justice

Decisive Legislation National legislation EU legislation (primary and secondary law) EU legislation (secondary law)

Decisive Status Nationality/ Citizenship Citizenship of the Union

Third-country national within scope of application of EU law

Dichotomy (the legal ‘other’) Citizen v. Foreigner Citizen of the Union v. Citizen (static) & third-country national Citizen of the Union & third-country national v. Citizen (static)

2.4 Law As an Amplifier of ‘Otherness’ and Defender of ‘Communities of Value’ 2.4.1 Immigration Law As a Mirror So far in this chapter the limelight has been on how the nation state with its community of nationals puts immigrants automatically outside that community. This systemic differentiation persists, even if the rights given to foreigners are equal to those enjoyed by the citizens of the receiving society. In what follows, the analytical focus shall be on ways immigration legislation itself influences the ‘othering’ of individuals and potentially amplifies the systemic ‘othering’ introduced in this chapter so far. Such analysis of the laws governing immigration, especially of the differentiations between groups within it, is fundamentally important. As Liav Orgad wrote, (t)o a large extent, the substance of the requirements ‘we’ demand of ‘them’ is about ‘us’. Immigration policy echoes national identity by mirroring not only the qualities that ‘we’ value in others, but also by reflecting the essentials that define ‘us’ as a nation. In a sense, drafting immigration requirements is a form of nation-building.86

86

L. Orgad, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (Oxford: Oxford University Press, 2015), p. 3.

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

    ‘’

Immigration regulation as well as immigration policy is a mirror into the soul of societies of nation states: We are those who define the type and number of people we permit to join our community, and what rules apply to the naturalization process. Immigration law, hence, is a unique platform to examine our choices.87

It is in this sense immaterial whether the differentiation between groups of immigrants occurs on the European or national level, as they will always be influenced by ideas and feelings toward specific groups.88 It has been established above that ‘othering’ is the discursive differentiation of an out-group, which is devalued, and an in-group.89 Between these groups, there is a power relationship that allows the in-group to dominate. In the scenario of immigration, this power relationship between the in-group of citizens and the out-group of immigrants is systemic. Social ‘othering’ often occurs along racial, religious, or cultural lines. This bears the danger, if such differentiations were captured in legislation and/or in legal discourse, that the law reinforces the segregation of immigrants from the receiving society.90 Law can re-enforce ‘othering’,91 however, it can, as Thym shows in Chapter 17,92 provide a counterpoint mitigating the excluding effects of social discourse through the guarantee of equal rights and status.93 The categorisation of groups within migration legislation in Europe do not exist in a vacuum. They are a result of a democratic legislative process and the application and interpretation of rules in the administrative and judicial system of nation states and/or the EU. In this sense, the categorisation of migrants and the differences of treatment between the individual groups are not fully detached from the processes of social ‘othering’ 87 88

89 90

91

92 93

Ibid. See Groenendijk, ‘Categorizing Human Beings in EU Migration Law’, p. 24, who refers inter alia to the categorisation in EU Visa regulation, which excludes people from Africa, Asia, and most predominantly muslim countries from visa-free travel, while allowing it for countries which are all ‘predominantly Christian’; see also on the ‘hierachies of privilege’ in EU law, Chapter 7 by Idriz. Todres, ‘Law, Otherness, and Human Trafficking’, pp. 607–608. Compare Section 6.2 by Murphy, which shows that constitutional law and discourse allows clarifications about how citizenship should be seen and in how far traditions and culture should be perpetuated into the future. Ajzenstadt and Shapira, ‘The Socio-Legal Construction of Otherness under a Neo-Liberal Regime’, p. 688. See Section 17.2.3 by Thym. See, for example, on the mechanics of such legal protection of immigrants within the system of (constitutional) law, Chapter 6 by Murphy.

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.      ‘’



described in Sections 2.1.2 and 2.2.1.94 In other words, ‘(. . .), migration categories assert certain values and positions’.95 Remember that ‘othering’ usually goes hand in hand in western societies with describing oneself as ‘community of value’.96 These values are usually depicted as common shared norms codified in a constitutional document.97 In short, the western ‘communities of value’ describe themselves as liberal nation states consisting of a community of ‘good citizens’.98 As Dauvergne teaches, ‘(r)egulation of immigration has at all times been closely tied to national values’; and ‘(v)alues have evolved over time, but have never been far from the text of the law’.99 It is not surprising that the community of value is then portrayed to be in need of protection against illiberal and intolerant outsiders. This need can be codified in law. Often foreign elements but also ‘failed citizens’ are described as threats to the community of good citizens.100 Labour markets are often subsumed under the description of what the community of value entails. This is the place where the ‘hard-working citizens earn money for their families’.101 Of course, also the labour market is threatened by the influx of foreign labourers, who are undercutting wages and making life difficult for the national worker.102 What is more, some groups of immigrants are more ‘equal’ or more ‘different’ than others.103 For example, during the ‘refugee crisis’ of 2015 and beyond, almost no political force from left to right was in favour of completely stopping support for refugees. What was contentious, however, was the precise definition and differentiation of refugee and ‘economic migrant’/‘economic refugee’. Many economic migrants 94

95 96 97 98 99 100 101

102 103

As such, legal rules change and create a new reality with feedback loops on the ‘othering’ of individuals, Section 17.1 by Thym; compare also Chapter 18 by Jesse who claims that legal rules are rather sticky and tend not to change as quickly as the social and political discourse, which renders them even more suitable as counterpoint limiting the detrimental effects of political discourse in practice, as described by Thym, see Section 17.2.3. Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 69. Ibid., p. 2. Compare the list provided in Art. 2 of the Treaty on European Union. Anderson, Us & Them – The Dangerous Politics of Immigration Control, pp. 2–3. Dauvergne, The New Politics of Immigration and the End of Settler Societies, p. 19. Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 4. Compare official rhetoric of PVV in the Netherlands, AFD in Germany, Rassemblement Nationale in France, La Lega in Italy, for example. They all provide versions of this sentence in their party programmes. Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 10. See Section 7.4.2 by Idriz on economic ‘othering’ and privileges of economically strong immigrants in the EU.

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

    ‘’

were allegedly hiding in the flow of refugees. Because no moral or legal right would exist to cater for the needs of economic migrants, action would have to be taken to stop them from entering the EU or ‘own’ Member State. Categories in migration regulation always carry a value judgement of the receiving society about the arriving individual or group. For example, the same person could be a highly skilled, privileged migrant deemed a useful addition to the receiving society in one situation, or an asylum seeker who is treated as a potential risk and burden in a different situation, or a recognised refugee elsewhere.104

2.4.2 Integration Measures and Economic Conditions As (Fake) Defenders The battlegrounds for the defense of the community of value these days are civic integration criteria and attempts to enforce a certain level of integration of immigrants.105 For example, low participation rates on the labour market are typically blamed on immigrants due to their low employability as a result of a refusal to integrate, for example, by learning the local language. This allegation then becomes a ‘central, albeit controversial, assumption in public debates’ about migration. The public debates then usually shift to almost exclusively addressing the lack of integration efforts on the side of the immigrants, instead of the original root of the problem, namely the low participation of migrants in the labour market. The results are not seldom changes in immigration regulation, often in the form of harsher criteria, tougher integration tests, more conditional residence permits, and less residence security.106 In short, the level of stigmatisation of immigrants rises while the level of awareness of responsibilities to include on the side of the receiving society decreases. As Joseph Weiler sharply formulated, such attempts to de-‘other’ immigrants through a forceful invitation to become ‘us’ made mandatory by means of immigration conditions in immigration regulation, carries a lot of problems: 104 105

106

Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 69. D. Kostakopoulou, ‘The Anatomy of Civic Integration’ (2010) 73(6) Modern Law Review, 933–958. For the unfolding of this circle in the case of Germany, see M. Kontos, ‘Restrictive Integration Policies and the Construction of the Migrant as “Unwilling to Integrate”: The Case of Germany’, in A. F. Anthias and M. Pajnik (eds.), Contesting Integration, Engendering Migration – Theory and Practice (Basingstoke: Palgrave, 2014), p. 131.

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.      ‘’



It is noble since it involves, of course, elimination of prejudice, of the notion that there are boundaries that cannot be eradicated. But the ‘be one of us’, however well intentioned, is often an invitation to the alien to be one of us by being us. Vis-à-vis the alien it risks robbing him of his identity. Vis-à-vis oneself, it may be a simple manifestation of both arrogance and the belief in my superiority as well as my tolerance. If I cannot tolerate the alien, one way of resolving the dilemma is to make him like me, no longer an alien. (. . .) It is a form of dangerous internal and external intolerance.107

Integration measures in this sense fit the process of ‘othering’ described as degeneration of the ‘other’ and idealisation of the self-described in Section 2.1.2. Kochenov adds that ‘it is highly worrisome that the member states do not feel the need to respect the private realm of those willing to naturalize; language and culture should be left to every individual human being to choose and to practice’.108 As such, integration conditions for specific groups of immigrants are perfect examples of illiberal practices often invoked based on a narrative of protection of liberal values of the receiving society. Another example is the over-emphasis of economic conditions, such as personal wealth or highly skilled employment, as conditions for immigration.109 There is a ‘global hierarchy of citizenship’ and wealth in which persons from rich countries or of wealth usually find it much easier to migrate and settle in all parts of the globe while poor people usually find doors shut.110 Also, there are tendencies to make the status of immigrants increasingly insecure and to make residence security dependent on ever more economic criteria to be fulfilled. As Carter shows in Chapter 16, the ‘othering’ of economically weaker individuals and the destruction of welfare safety-nets, which is not necessarily limited to immigrants,111 accelerated with technical progress and the advent of neo-liberalism over the last decades.112 As Jesse and Carter show, there 107

108

109

110 111 112

J. H. H. Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’, in J. H. H. Weiler and M. Wind (eds.), European Constitutionalism beyond the State (Cambridge: Cambridge University Press, 2003), p. 7. D. Kochenov, ‘Mevrouw De Jong Gaat Eten – Naturalization Biases Tested in Practice’, in D. Acosta and A. Wiesbrock (ed.), Global Migration – Old Assumptions, New Dynamics, Vol 2 (Santa Barbara: Praeger, 2015), p. 173. See Chapter 7 by Idriz, which identifies economic strength as an indicator for strong rights in regulation applicable to EU citizens and third-country nationals alike. Anderson, Us & Them – The Dangerous Politics of Immigration Control, p. 112. See Section 17.3 by Thym. See Section 16.2 by Carter.

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

    ‘’

is a clear definition of an ‘economic other’ even in EU free movement law, which strips economically weak individuals of their very right to reside even under EU free movement rules.113 As far as third-country nationals are concerned, there are clear privileges for those immigrants who qualify for a European Blue-Card, foremost in the area of family reunification rights and integration conditions, under EU law.114

2.4.3 The Role of the Judiciary Not only the law itself but also the way it is interpreted is worth analysing. Courts have a special responsibility in this regard. For example, metaphors used in legal discourse and judgments at times liken migration to natural disasters, such as avalanches, floods, or streams which flow wilder than normal.115 These metaphors subconsciously trigger or contribute to existing fears. They remind bystanders that migration movements not only pose risks comparable to natural disasters but that these movements are in fact as uncontrollable as such disasters.116 This gives further credibility to the devaluing treatment of ‘others’ and provides credibility to seeing migration foremost as a risk. The fact that in cases where such rhetoric is used the law is often interpreted in a rather restrictive way and allows governments to restrict the rights of immigrants adds to the narrative of risk, which is then legitimised by the judiciary in the mind of the public.117 An analysis on how far law and its interpretation by courts is influenced by tendencies to ‘other’ immigrants is necessary because law is increasingly used to control migration.118 As a matter of fact, migration has become a policy domain dominated by law as interpreted by courts over recent years. For ‘othering’ this means that the differentiation between us and them, between members or quasi-members of society 113 114

115

116 117 118

See Chapter 15 by Jesse and Carter, and Chapter 16 by Carter. See Directive 2009/50, see also M. Jesse, ‘The Selection of Migrants through Law – A Closer Look at Regulation Governing Family Reunification in the EU’, in F. Anthias, M. Pajnik (eds.), Contesting Integration, Engendering Migration: Theory and Practice (Houndmills: Palgrave-MacMillan, 2014), pp. 86–101. The US Supreme Court used metaphors such as ‘ever increasing floods of illegal aliens’, ‘northbound tides’ which have to be stemmed; see K. Cunningham-Parmeter, ‘Alien Language: Immigration Metaphors and the Jurisprudence of Otherness’ (2011) 79(4) Fordham Law Review, pp. 1562–1563. Ibid. Ibid. Dauvergne, The New Politics of Immigration and the End of Settler Societies, p. 203.

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. :    ‘’



with a foreign background under immigration regulation has become binary. Law is always binary. Something is legal or illegal, fulfilling all legal conditions or not. Immigrants can of course fall into an infinite amount of legal statuses in immigration regulation; however, falling within the scope of one of these statuses will always be a binary legal decision based on the respective section of the applicable regulation and the facts of the individual case. As Dauvergne says, law ‘is woefully bad at nuance’.119 Careful drafting of immigration law in a nuanced way is necessary in order not to unnecessary exclude people. However, the interpretation by the courts has become more important given the ever more decisive role of law in the attempts to govern and limit immigration movements. Courts must be aware of the effects of their actions and the potential detrimental results of their decisions, which might not be limited to the individual case in front of them. If the law ‘is woefully bad at nuance’, judges should pay extra attention to nuances in cases in front of them.120

2.5 Conclusions: Immigrants As the ‘Other’ ‘Othering’ is the opposite of integration. It is a discursive process that segregates groups instead of bringing them together. A powerful in-group differentiates an out-group, which is devaluated as ‘barbaric’ outsiders, and who are depicted as a threat to the in-group. This devaluation serves to legitimise harsh treatment and the exclusion of these ‘others’ from society. In addition to the devaluation of the ‘other’, the in-group is usually glorified as liberal, enlightened, hard-working, and law obeying. In short, it is described as a ‘community of value’. This community needs protection. In law, ‘othering’ must be approached under the structuring umbrella of the nation state which defines individuals as citizens or foreigners. The foreigner is per definition the legal ‘other’ who gets rights, while the citizen has rights in a nation state. The legal situation of the immigrant depends on national legislation, which will always describe the legal position of the foreigner with reference to the legal situation of citizens. This situation has been severely disrupted by EU integration. EU 119 120

Ibid. The effects of problematic and hostile application of otherwise favorable legislation to the detriment of immigrants on their self-image and their position in the receiving society, see Section 8.3 by Kolbaşı-Muyan, which dwells on the ‘perceptions of discrimination and alienation by second generation Turkish Dutch’.

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

    ‘’

citizens, individuals who can rely on EU free movement rights, as well as third country nationals who fall under the scope of application of EU law, see their rights and obligations no longer determined by national law alone, but can often rely on directly applicable EU legislation against the Member States of the EU. These groups have rights under EU law. The discretion of the Member States to decide about the legal situation of foreigners is severely limited consequently. ‘Othering’ within legislation seeking to govern immigration on the EU or national level is always connected to the image of a community of value. Groups are ‘othered’ in migration law because they are assumed to be a risk to society that needs to be controlled. Legislation is likely to reenforce these views. Law, however, could also do the opposite and confront social ‘othering’ through equal rights and equal treatment, and providing remedies to enforce both.

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3 ‘Othering’ in Unconcerned Democracies and the Rise of Anti-liberal Political Divisions ˇ                        r 3.1

Introduction

The so-called refugee crisis of 2015 and the events following it (hereinafter referred to in this chapter as ‘the migrant crisis’) have significantly changed the dynamics of political discourses across Europe. Naturally, the change has also left its mark in national and EU law. One of the keys to understand the new situation is the process of political and legal ‘othering’ that took place among European societies and the migrants as well as within European societies. This chapter aims to explore these dynamics in two respects. First, it provides an empirical analysis by mapping reactions to the migrant crisis from the Czech political actors’ point of view. The case of the Czech Republic represents an especially fitting choice as a majority of its politicians and civic society reacted with distinctively strong negative sentiments to the crisis, and the processes of ‘othering’ played a fundamental role in formulating migration policies. Particular attention is paid to identifying the specific ways and means political actors used to conceptualise migrants as ‘the others’, i.e. to establish the gap between ‘us’ and ‘them’ as a political category. Furthermore, to provide a broader context of the situation beyond the political realm, the political analysis is complemented by looking at domestic law, civic society, and the Czech Republic’s international position. Secondly, the chapter proceeds to construct a more robust theory and interpretation of ‘othering’ processes. The theory of ‘othering’ is based on the observation that there are strong similarities in the means and intentions of various political actors when engaged in processes that result in ‘othering’. They use the tensions arising from the natural distance between ‘the others’ and mainstream society, to constitute ‘otherness’ as a political category, i.e. as standing against the collective 

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

‘’   

purpose of ‘our’ political existence. Principles of identification, homogenisation, threat assignment, expulsion, and closure are applied through the process. Under an intensive degree of ‘othering’, the idea of integration is negated and ‘the others’ are turned into an existential threat which is to be eliminated.1 To interpret the outcomes of the above-mentioned radical degrees of ‘othering’, the chapter further evaluates the identity outcomes of the radical ‘othering’ processes from the standpoint of some of the principles of modern constitutionalism. It suggests that the political idea of hostile ‘otherness’ violates the principle of human dignity as a core structure of the human rights discourse. Thus, it politically endangers one of the core normative structures of modern post-war constitutionalism. Additionally, it shows that the presence of the hostile ‘others’ distorts the quality of democratic procedures and deliberations. Taking account of the two extreme consequences of ‘othering’, the interpretative conclusion argues that the constitutional systems burdened by the strong group differentiation dynamic in political discourse are politically casted behind the normative boundaries of modern constitutionalism. The chapter suggests a term ‘unconcerned democracy’ to define the combination of these two negative effects created by ‘othering’. The aim is to distinguish between authoritarian forms of governance and illiberal democracies, both typical in today’s Eastern Europe, where principles of modern constitutionalism are violated also on the normative and institutional level.2 In this sense the chapter articulates the danger to modern constitutionalism in conditions of radical ‘othering’ limited dominantly to the political sphere.

1

2

Compare with the findings of Sections 2.1 and 2.2 by Jesse, which described ‘othering’ as the opposite of inclusion. See, among many, D. Collier and S. Levitsky, ‘Democracy with Adjectives: Conceptual Innovation in Comparative Research’ (1997) 49(3) World Politics, 430–451; L. Diamond, ‘Thinking about Hybrid Regimes’ (2002) 13(2) Journal of Democracy, 25–31; S. Levitsky and L. A. Way, ‘The Rise of Competitive Authoritarianism’ (2002) 13(2) Journal of Democracy, 51–66; G. O’Donnell, ‘Human Development, Human Rights and Democracy’, in G. O’Donnell, J. V. Cullel, and O. Iazzetta (eds.), The Quality of Democracy. Theory and Applications (Notre Dame: University of Notre Dame Press, 2004), pp. 9–92; A. Schedler (ed.), Electoral Authoritarianism: The Dynamics of Unfree Competition (Boulder: Lynne Rienner, 2006); K. L. Scheppele, ‘Autocratic Legalism’ (2018) 85(3) University of Chicago Law Review, 545–583; P. C. Schmitter and T. Karl, ‘What Democracy Is and Is Not’, in L. Diamond and M. Plattner (eds.), The Global Resurgence of Democracy (Baltimore: Johns Hopkins University Press, 1993), pp. 3–16.

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. ‘’    



3.2 ‘Othering’ As a Leading Principle of Czech Political Discourse The following empirical analysis of the situation in the Czech Republic focuses on the role of major political actors, such as the President, Prime Minister, and political parties, in reacting to the migrant crisis. It shows how prevailing negative sentiments about the migrant crisis became a means to explain the idea of ‘the others’ as a threat and to intensify the degree of existential hostility. The impact of such political ‘othering’ on law, civic society, and international cooperation, as will be introduced in Section 3.3.2, proves that political changes affect the legal system and political and civic opposition to identity-based policies rather slowly.

3.2.1 ‘Othering’ and Political Actors in the Czech Republic The president of the Czech Republic, Miloš Zeman, elected in January 2013 and re-elected in January 2018, has had a significant influence on the formation of political discourse concerning the migrant crisis in his country. During his term in office, the President has demonstrated rigorous and consistent opposition to any sort of immigration of refugees. He has talked about a ‘migration wave’ that is ‘an organized invasion and not a spontaneous movement of refugees’.3 In this respect he compared himself to Kassandra, who tried to warn the Trojans against the threat of the Trojan Horse,4 and saw an analogy of the migrant crisis with the Ottoman Empire’s invasion of Europe.5 When it comes to migrants themselves, president Zeman does not think that any solidarity is needed because he sees those who arrive as a homogenous group of young and healthy Islamic men without families. Instead of recognising their refugee status, the President claims that most of them are economic migrants. He portrays them as people betraying their country, giving up the fight against the Islamic State or other extremist group in exchange

3

4 5

Christmas Message of the President Miloš Zeman on 26 December 2015. Accessible in Czech: www.zemanmilos.cz/cz/clanky/vanocni-poselstvi-prezidenta-republiky-milosezemana-992861.htm, last accessed 15 October 2019. Ibid. Press Conference of the President Miloš Zeman during the state visit of Hungary on 15 May 2019. Accessible in Czech: www.zemanmilos.cz/cz/clanky/projev-prezidentarepubliky-pri-setkani-se-zastupci-tisku-k-oficialni-navsteve-madarska.htm, last accessed 14 October 2019.

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

‘’   

for European social benefits.6 Furthermore, migrants are pictured by the president to represent direct threats to public order as they are seen as Islamic terrorists facilitating the expansion of the Islamic State to Europe.7 In the long term, they are presented as ‘a culturally incompatible stream of Islamic migrants’8 who come from a ‘culture of murderers and religious hatred’ and who will pose a cultural threat unlike, for example, beneficial migrants from Eastern Europe.9 The president’s position is based on three convictions: (1) the imminent risk to public order via terrorism, (2) cultural incompatibility of migrants with the domestic population, and (3) a view of the migration crisis through the prism of a clash of civilisations. For these reasons he has opposed any sort of obligatory relocation and resettlement mechanism of asylum seekers on the EU level (hereinafter referred to as the ‘ORRM’),10 even though the issue was decided by the CJEU.11 He has perceived such inter-EU mechanisms as contradictory to Czech national interest and sovereignty, and even compared it with the exercise of the Brezhnev Doctrine of Limited Sovereignty and Intervention.12 He only supports limited humanitarian and development aid together with a vigorous fight against Islamic terrorism in the countries of its origin.13

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8

9

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12

13

Speech of the president at the 17 November Memorial on 17 November 2017. Accessible in Czech: www.zemanmilos.cz/cz/clanky/projev-prezidenta-republiky-pri-vzpominko vem-aktu-udalosti-17-listopadu.htm, last accessed 15 October 2019. Christmas Message of the President Miloš Zeman on 26 December 2016. Accessible in Czech: www.zemanmilos.cz/cz/clanky/vanocni-poselstvi-prezidenta-republiky-milosezemana441618.htm, last accessed 13 October 2019. Speech of the President at Zofin Forum on 22 June 2017. Accessible in Czech: www .zemanmilos.cz/cz/clanky/projev-prezidenta-republiky-pri-zofinskem-foru-2017-349511 .htm, last accessed 15 October 2019. Speech of the President at the 17 November Memorial on 17 November 2017. Accessible in Czech: www.zemanmilos.cz/cz/clanky/projev-prezidenta-republiky-pri-vzpominko vem-aktu-udalosti-17-listopadu.htm, last accessed 15 October 2019. Council Decision 2015/1601 of 22 September 2015, establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ 2015 No. L248/ 80, 24 September 2015. Joined Cases C-643/15 and C-647/15, Slovak Republic and Hungary v. Council of the European Union [2017]. Speech of the President at Zofin Forum on 28 May 2019. Accessible in Czech: www .zemanmilos.cz/cz/clanky/projev-prezidenta-republiky-pri-zofinskem-foru-683431.htm, last accessed 15 October 2019. Speech of the President at the 29th Session of the Chamber of Deputies on 19 June 2015. Accessible in Czech: www.zemanmilos.cz/cz/clanky/projev-prezidenta-republiky-pri-29schuzi-poslanecke-snemovny-parlamentu-cr.htm, last accessed 11 October 2019.

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. ‘’    



To support his stance on migration the president has cooperated with radical right-wing anti-migration parties in the Czech Republic, such as the Freedom and Direct Democracy party (SPD), and social movements. Through such collaboration he has normalised and legitimised activities of right-wing extremists as a standard part of the (mainstream) political spectrum. For this reason, Zeman fights against ‘labelling’ (extreme) right-political speech as what it is, and rather refers to protected free speech and political participation of all political entities. Labelling rightwing speech as being emitted by ‘extremists, xenophobes, Islamophobes, racists, and fascists’ would in his view only lead to divisions in society.14 In a letter to the SPD, he stated that ‘I do not consider you to be extremists, but rather a radical party. Radicalism means descent to roots and radical parties are a stable part of the political spectrum in all the EU countries’.15 The reaction of the Czech government, especially of the Prime Minister, to the migration question reflected the President’s opinions in practical terms. However, there was a significant difference in tone between the premiership of the Social Democrat Bohuslav Sobotka, in office from January 2014 until December 2017, who led a coalition government of social democrats, Christian democrats, and the populist ANO, and his successor, Andrej Babiš (ANO), who has been in office since December 2017 while supported by a coalition government of the populist ANO and social democrats. Sobotka opposed the President’s rhetoric and accused him of spreading fear, hatred, and populism, in a country with a long humanistic and democratic tradition.16 However, under pressure from public opinion, Sobotka failed to bring any sort of meaningful moral and value-based reasoning to political discourse. Like the president, he exclusively supported solutions targeting migrants’ countries of origin and opposed any form of ORRM. Prime Minister Babiš represents a principal opposition to migration, as evidenced by his popular slogan ‘We do not want a single one!’. Unlike the president, Prime Minister 14

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Speech of the President at the Holiday of the 17th November on 17 November 2015. Accessible in Czech: www.zemanmilos.cz/cz/clanky/projev-prezidenta-republiky-privzpominkovem-aktu-udalosti-17-listopadu.htm, last accessed 12 October 2019. Greetings of the President Sent to the National Conference of SPD on 13 July 2019. Accessible in Czech: www.zemanmilos.cz/cz/clanky/pozdrav-prezidenta-republikyzaslany-na-celostatni-konferenci-hnuti-svoboda-a-prima-demokracie-772149.htm, last acessed 15 October 2019. V. Dolejší, J. Kubík, ‘Sobotka: Zeman šíří nenávist’, Hospodářské noviny, 20 November 2015.

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

‘’   

Babiš usually refrains from explicit conceptualisations of migrants as, for example, culturally incompatible, invasive Islamic terrorists. He also refrains from references to the symbolic realm of Czech and European identity. His position can be characterised as a rather strong popular pragmatism that solely reflects prevailing public opinion, which is largely against immigration. With this in mind, he only uses the argument of immigration being linked to a threat to public security, rather than basing his stance on a systemic political ideology. For these reasons, he assumes policies that are aimed solely at the Czech Republic’s territorial protection against migration, e.g. opposition to any form of ORRM,17 strict protection of the Schengen Area’s external borders against any illegal entry,18 and a tightening of the asylum system.19 He sees his position as reflecting the ‘national interest’, and only proposes responses to the migrant crisis that take place exclusively in migrants’ countries of origin, such as development aid and the creation of external hotspots for asylum seekers.20 The migrant crisis initiated a major rise in activities of civic society that was typically divided between opponents and supporters of migration. Some of the opponents set up anti-migration associations such as No Islam in the Czech Republic and Unit against Islamization.21 The antimigration sentiments were integrated as a core programme of the rightwing populist party Dawn of Direct Democracy that was founded in 2013 and gained 6.88 per cent of votes in the 2013 general election. This translated into 14 out of 200 seats in the Chamber of Deputies. The former leader of the Dawn of Direct Democracy, Tomio Okamura, 17

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Speech of the Prime Minister at the Conference Czech National Interest on 14 May 2019. Accessible in Czech: www.vlada.cz/cz/clenove-vlady/premier/projevy/projev-predsedyvlady-na-konferenci-cesky-narodni-zajem-173682/, last accessed 15 October 2019. Speech of the Prime Minister at the Conference Prague European Summit on 19 June 2018. Accessible in Czech: www.vlada.cz/cz/clenove-vlady/premier/projevy/projev-pre miera-babise-na-konferenci-prague-european-summit-166926/, last accessed 14 October 2019. Speech of the Prime Minister at the Conference Secured Czechia on 20 March 2019. Accessible in Czech: www.vlada.cz/cz/clenove-vlady/premier/projevy/uvodni-projev-pre miera-na-konferenci-bezpecne-cesko–172655/, accessed 8 October 2019. Declaration of the Prime Minister Concerning the New Development in the European migrant Debate from 14 May 2019. Accessible in Czech: www.vlada.cz/cz/media-cen trum/aktualne/prohlaseni-predsedy-vlady-k-aktualnimu-vyvoji-debaty-o-evropskemigracni-politice-166521/, last accessed 12 October 2019. Website of ‘No Islam in the Czech Republic’, i.e. ‘Islám v České republice nechceme’: www .ivcrn.cz/. Website of ‘Unit against Islamization’, i.e. ‘Blok proti islamizaci’: www .blokprotiislamizaci.cz/, last accessed 11 October 2019.

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. ‘’    



currently represents the most radical anti-immigration positions through his new political party, SPD, established in 2015 after separating from the Dawn of Direct Democracy.22 SPD received 10.64 per cent of votes in the 2018 general election and is represented by 22 deputies. It has thus become the most prominent right-wing anti-migration populist party of the Czech Republic. The common feature of all the radical entities mentioned here is the absolute opposition to any sort of immigration associated with the migrant crisis. The Czech SPD sees the migrant crisis as an ‘initial phase of a conflict that ultimately endangers freedom, democracy and the existence of the Czech Republic and Czech nation’.23 The paradigm of a clash of civilisations leads the party to promote a complete prohibition of immigration of ‘maladjusted migrants and Islamic religious fanatics’, a ‘refusal of multicultural ideology’, a strong repression of radical Islam, and the active participation of citizens in the protection of state borders.24 They tend to depict migrants as criminals and a force invading Europe. Unlike the new radical anti-migration parties that integrated antimigration positions into their programme, the established parliamentary parties were confronted with major internal tensions. First, none of the established parliamentary parties was able to put forward policies or even arguments in favour of migration. The decision of the Chamber of Deputies to condemn the introduction of the ORRM was adopted by the consent of all parliamentary parties.25 Secondly, tensions about party positions led to wide gaps between their liberal and conservative wings, which represented open and closed views on migration. In all parliamentary parties there are thus elements that support, at least to a certain degree, the rhetoric of radical anti-migration political actors. The problem of liberal elements in political parties also lies with the fact that public opinion polls have shown that in recent years approximately 60 per cent of the population has been against any sort of immigration, including international protection of refugees. Only approximately

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24 25

The acronym ‘SPD’ stands for ‘Freedom and Direct Democracy’, i.e. ‘Svoboda a přímá demokracie’. Website accessible in Czech: www.spd.cz/, last accessed 15 October 2019. The Political Program of SPD. Accessible in Czech: www.spd.cz/program, last accessed 12 October 2019. Ibid. The Resolution of the Chamber of Deputies of the Parliament of the Czech Republic No. 888 of 1 October 2015 on the information of the Prime Minister concerning the solutions of the illegal immigration on the territory of the EU.

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

‘’   

30 per cent favoured temporary international protection and as little as 3 per cent agreed with a permanent resettlement.26

3.2.2 The Impact of ‘Othering’ on Law, Civic Society, and International Cooperation The overall implications of radical anti-immigration sentiments that penetrate the whole political spectrum have so far only had a limited impact upon the law. Several legislative proposals have been introduced by radical anti-migration parties. The majority aimed to severely limit the accessibility of international refugee protection. Out of these proposals, however, only one found its way through the legislative procedure and was adopted.27 It excluded a judicial review of the legality of detention of asylum seekers and their chances of being released before their case was reviewed judicially. This law was then found to be unconstitutional by the Constitutional Court of the Czech Republic due to a violation of due process clause.28 Concerning the role of the judiciary at large, it is noteworthy that the independence and operation of the Czech Republic’s judiciary has not been restricted by the other state powers, as it has in some of the other eastern European countries, such as Poland and Hungary. Even though the judicial branch lacks the competence to engage directly in political discourse, it ensures the effective protection of human rights via abstract constitutional review, as well as administrative review in individual cases of migrants in the territory of the Czech Republic. A more profound consequence of the anti-migration sentiments can be seen in the application of the law by the executive. The Interior Ministry, which is responsible for granting asylum protection, has been quite intransigent when it comes to evaluating the applications for refugee protection. The success rate of applications fell from approximately 30 per cent in 2015, to around 10 per cent in 2019. This has turned the Czech Republic into a country with one of the lowest refugee

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28

See the opinion polls done between 7 and 19 April 2018 by the Centre for Research of the Public Opinion. Accessible as published on 8 June 2018 in Czech: www.cvvm.soc.cas.cz/ media/com_form2content/documents/c2/a4643/f9/pm180608.pdf, last accessed 15 October 2019. Act No. 222/20017 Coll., amending the act No. 326/1999 Coll., on residence of foreigners and on amendment of some statutes, as amended, and related statutes. Judgement file reference Pl. US 43/17, dated 27 November 2018.

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. ‘’    



recognition rates in the EU.29 Similarly, the competent executive organs of the Czech Republic abstained from implementing the ORRM. The tensions over the migrant crisis have led to a fragmentation of civic society. The ‘othering’ of ‘us’ versus ‘the migrants’ translated into the division of proponents and opponents of immigration at large. The opponents of migration created new linguistic terms such as ‘pravdoláskaři’ or ‘havloidi’ to denote the liberal traitors of the nation that were in favour of the migrants, which has reached the highest political actors, including the President. ‘Pravdoláskaři’ refers to a statement of the first president of the Czech Republic and means that ‘truth and love must prevail over lies and hatred’, which was uttered during the fall of the Communist regime. It represents many political actors’ and the public’s denial of the outspokenly liberal tradition of the immediate postcommunist era. ‘Havloidi’ ridicules the name Václav Havel in the same spirit as the first expression. Furthermore, non-governmental organisations, the liberal media, as well as minorities living in the Czech Republic, were all facing strong political headwinds. In the area of international cooperation, anti-migration sentiments have had two major effects. First, they have led the Czech Republic to distance itself from global initiatives concerning migration. The government decided to vote against the Global Compact for Safe, Orderly, and Regular Migration, joining the United States, Hungary, Israel, and Poland in doing so,30 even though the Czech Republic had voted in December 2018 in favour of the Global Compact on Refugees as a part of a resolution of the General Assembly 73/151 ‘Office of the United Nations High Commissioner for Refugees’.31 The government immediately stated that the resolution ‘does not have any impact on the migration policies of the Czech Republic’ and thus attempted to distance itself from views in the media of having adopted a pro-migration instrument.32 29

30

31

32

See asylum statistics provided by Eurostat: hwww.ec.europa.eu/eurostat/statisticsexplained/index.php?title=Asylum_statistics&oldid=421545#Decisions_on_asylum_appli cations, last accessed 11 October 2019. General Assembly resolution 73/195, Global Compact for Safe, Orderly and Regular migrant, A/RES/73/195 (19 December 2018), available from https://undocs.org/en/A/ RES/73/195, last accessed 14 October 2019. General Assembly resolution 73/151, Office of the United Nations High Commissioner for Refugees, A/RES/73/151 (17 December 2018), available from https://undocs.org/en/ A/RES/73/151, last accessed 14 October 2019. Resolution of the Government of the Czech Republic 876 of 17 October 2018 on the further steps in relation to the Global Compact for Safe, Orderly, and Regular Migration and the Global Compact on Refugees in the United Nations.

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

‘’   

This also explains the later vote against the Global compact itself. Secondly, the shared negative stance on migration brought the ‘Visegrád Four’ countries together in creating a platform for forming common opposition to policies which are considered ‘too open’ towards migration on the EU level. The principle opposition to any obligatory resettlement quota is one such shared policy. This common position has deep historical and cultural connotations, even though there are clear differences when it comes to the means of ‘othering’ of immigrants in each country. For instance, the discussions in the Czech Republic predominantly reflect the potential cultural tensions between Islam and the European public sphere, but express them as a conflict of religious and secular ideologies. This discourse finds fruitful ground given the low levels of religiosity in the Czech society. A civic society, which rallied to pray the rosary at the national borders in order to protect the national future, which occurred and was endorsed by many politicians in Poland on October 7, 2017, would be a rather odd phenomenon in the Czech Republic.33

3.3 Constructing ‘Us’ and ‘the Others’ While Deconstructing Modern Constitutionalism This section will address a theoretical and interpretative approach to ‘othering’ based on the observations made in Section 3.2. It describes the methods political actors use to create an intensive degree of ‘othering’ aimed at turning ‘others’ into an existential threat. While political allies are integrated into ‘our’ political purpose, the enemy is ‘othered’ as standing against ‘our’ common political purpose. In order to reach such an extreme state of hostility, political actors use a wide range of instruments, such as simplifications, the spreading of fear, historicising narratives of events. Such developments are then assessed under the prism of modern constitutionalism. The state of political discourse that is dominated by the presence of the extreme degree of political hostility violates the basic principles of human rights discourse, especially the concept of human dignity. It also has a destructive effect on the quality of democratic governance.

33

See Krzysztof Jaskułowski, The Everyday Politics of Migrant Crisis in Poland: Between Nationalism, Fear and Empathy (Cham: Palgrave Macmillan, 2019).

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.  ‘’  ‘ ’



3.3.1 The Logic of Political ‘Othering’ in Five Principal Steps Integration as well as ‘othering’ are two basic principles that determine the dynamics of any political discourse. Every political cooperation presupposes an integration of individuals into the commonwealth of a shared collective purpose, and it implicitly establishes ‘otherness’ of those who have been excluded from this commonwealth.34 In this sense, integration and ‘othering’ are two sides of the same coin as no political integration ever comprised the whole of mankind.35 Naturally, the principle of integration has been visible throughout history along the lines of existing similarities, as regards for example race, culture, nationality, and religion, between individuals. Vice versa, these features have also usually constituted the boundaries between ‘us’ and ‘them’. The structure created by a nation state will, by its very constitution, always differentiate between ‘us’, i.e. the nationals, and those who are not nationals.36 The Constitution of the Czech Republic formulates and integrates the primary identity of ‘us’ as the citizens of the Czech Republic and excludes ‘others’ as foreigners.37 Therefore, the shared collective purpose is expressed along the lines of ‘us’ as state citizens. For this reason, only citizens enjoy the full set of political rights.38 The migrant crisis confronted ‘us’, the ‘Czech citizens’, with foreigners who were on their way to Europe to find international protection or economic prosperity. The Czech political establishment thus had to define how to deal with ‘them’ in light of the original division between ‘us’ and ‘them’. The political decisions that touched upon the principles of integration or ‘othering’ had a sense of urgency attached to them, because the EU, as well as the Czech Republic, was confronted with the inevitable arrival of ‘them’. Clearly, there was preference given to policies of ‘othering’ in the

34

35 36

37

38

Further on the topic of consent formation, e.g. P. Dobner, More Law, Less Democracy. The Twilight of Constitutionalism? (Oxford: Oxford University Press, 2010), pp. 146–147. See Section 2.1, by Jesse. Further on the topic of constitutional subject, e.g. A. Arato, Post Sovereign Constitution Making, Learning and Legitimacy (Oxford: Oxford University Press, 2016). Constitution of the Czech Republic of 16 December 1992 No. 1/1993 Coll., available from www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/Ustava_EN_ ve_zneni_zak_c._98-2013.pdf, last accessed 14 October 2019. Resolution of the Presidium of the Czech National Council of 16 December 1992 on the declaration of The Charter of Fundamental Rights and Freedoms as a part of the constitutional order of the Czech Republic Constitutional act No. 2/1993 Coll., available from www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/Listina_Eng lish_version.pdf, last accessed 12 October 2019.

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

‘’   

Czech Republic as set out above to reach a level of ‘otherness’ that could be described by the dichotomy of friend and enemy. This development resonates well with the ideas of Carl Schmitt on the enemy and its function to unite a society: The other, the stranger; and it is sufficient for their nature that they are, in an especially intense way, existentially something different and alien, so that conflicts with them are possible in extreme cases . . . Each participant is in a position to judge whether the adversary intends to negate his opponent’s way of life and therefore must be repulsed or fought in order to preserve one’s own form of existence.39

So, what steps are taken to move ‘othering’ of immigrants to feelings of threats for ‘one’s own form of existence’? There are five principal steps to be taken, which together explain the logic of political ‘othering’. They consist of (1) identification, (2) homogenisation, (3) characterisation of immigrants as existential threat, (4) expulsion, and (5) closure. The first step, the principle of identification, plainly signifies the necessity of recognising the distinction of ‘us’ versus ‘others’ as a political category. The ‘others’ need to be seen as standing outside of the realm of shared collective purpose and as such represent a foreign, unknown, and unpredictable element. In the case of the migrant crisis, the principle of identification is fulfilled by the essence of the migrant crisis itself. Migrants were seen by most Czech citizens as ‘others’ coming from distant lands and having differentiating characteristics such as race, religion, or nationality. Secondly, once the political actors decided to push a discourse of ‘otherness’ and prevent any sort of integration of the arriving ‘others’, the defining lines between ‘us’ and ‘them’ had to be established in a more firm and predictable manner. In this second step, the idea of ‘others’ had to be homogenised by reducing the complexity of reality. As we could see in the case of the Czech Republic, migrants have been characterised exclusively as Muslims, Arabs, terrorists, and young men, to a point that the image of a typical migrant was a young male Muslim Arab terrorist. It should go without saying here that in no way did these migrants constitute such an homogenous group of individuals. Simultaneously, the homogenisation of ‘others’ brings the necessity to formulate the prevailing identity of ‘us’ as the counterweight opposing the image of the 39

C. Schmitt, The Concept of The Political, 2nd ed. (Chicago: The University of Chicago Press, 2007), p. 26–27.

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.  ‘’  ‘ ’



‘others’. Czech society thus stood before a quest to define its own identity. Some of them perceived themselves religiously, secularly, or otherwise culturally different. They saw themselves as members of the Czech nation in a cultural sense. Others saw migrants as an equal human being but outside the categories defining the groups of ‘us’ as a Czech nation. This rather reflexive formulation of identity often follows the split in society mentioned in Section 3.2, i.e. between proponents and opponents of immigration, a division which itself is loaded with the accusation that you are either ‘faithful to the nation’ or ‘betraying’ it. The third step then consists of the escalation of ‘otherness’ to a degree of existential threat to ‘our’ way of life. As the arguments of the Czech president suggest, the homogeneous group of immigrants pose a threat to the economic, social, and cultural arrangements in Europe because they are all economic migrants with a lust for social benefits. At the same time, they also are a threat to public order because they are all terrorists trained in the so-called Islamic State, and they migrate to Europe in order to provoke the inevitable clash of cultures. Immigrants are thus labelled as a profound risk to the established social and political orders of receiving societies. The choice of words used to achieve this ‘promotion’ of migrants to enemies of the state also deserves attention. Viktor Orbán, the Prime Minister of Hungary, characterised the migrant crisis as warfare. He stated that ‘almost 400,000 people – mostly men of military enlistment age, unarmed but in military style – all of a sudden are marching across our border into Hungary. We no longer want to lack the physical power to stop or manage such a mass of 400,000 – which may not be armed, but which all the same represents a significant physical force’.40 Such an approach is reflected also in metaphors comparing the ‘stream’ of immigrants to a ‘wave’ or ‘invasion’. Immigrants are depicted as the most severe kind of antagonism imaginable, namely a dehumanised physical force existing in a state of war. A figure like Viktor Orbán cannot be found in the Czech Republic. He explicitly uses racial and ethnic differentiation, even though not as explicitly as the religious and national elements, for example, in his call to preserve the Hungary’s biological future without migrants.41 On the other hand, we can find 40

41

Interview with the Prime Minister of Hungary for the Kossuth Radio programme ‘Good morning, Hungary’ on 8 March 2019. Accessible in English: www.miniszterelnok.hu/ interview-with-prime-minister-viktor-orban-on-the-kossuth-radio-programme-goodmorning-hungary-8/, last accessed 11 October 2019. Ibid.

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

‘’   

similarities with the Czech president in the historicising of well-known narratives. Orbán, for example, describes the Hungarian nation as having a special historical role of protecting the mythical idea of ‘Imperium Christianum’ against the dangers coming from the East and South, such as Communism and Islam, a narrative close to the one developed by the Czech President as introduced in Section 3.2. Finally, expulsion and closure lead to policies aimed at creating an environment without the ‘others’ and without the threat emanating from the potential presence of the ‘others’. The categorical rejection of ORRM by all the major political actors in the Czech Republic represents a typical example of such a policy approach. The steps described here are not a comprehensive manual to be followed in a sequential manner. They are instead rather a typical phenomenon of extreme anti-liberal ‘othering’ and often take place more or less simultaneously. Individual political actors and policies may focus on one step more than the others. The remarkable thing, however, is the consequence of walking down the described path of anti-liberal ‘othering’: the steps taken, both individually but even more so in combination with others, represent a crisis of modern rationality and justice. For example, the reduction of complexity taking place through the homogenisation of migrants unjustly denies their rights to be considered individually and fairly. Additionally, the assignment of a priori hostility prevents rational discussion over the objective risks associated with immigration. Those risks undoubtedly exist but are blown out of proportion. Moreover, policies applying the steps introduced stand in direct contradiction to principles of modern constitutionalism, as is elaborated in Section 3.3.2.

3.3.2 ‘Unconcerned Democracy’ As a Consequence of Anti-liberal ‘Othering’ This section will introduce two consequnces of anti-liberal ‘othering’ on modern constitutionalism. First, the political idea of hostile ‘others’ violates per se the principle of human dignity as a cornerstone of human rights discourse. Political actors thus operate in contradiction with the core values of Western constitutional systems. Secondly, the presence of an enemy has a profound systematic impact on democratic processes. It modulates the way political actors behave and it influences political reasoning and political dynamics significantly. This section will introduce the term ‘unconcerned democracy’ for a constitutional system operating

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.  ‘’  ‘ ’



under such political conditions. The political system becomes ‘unconcerned’ about upholding human dignity in its operation. The concept of human dignity was incorporated into the international and national human rights discourses after the end of the Second World War as a direct reflection of the systematic denial of human dignity during the Holocaust and other atrocities of the Second World War.42 By introducing the concept of human dignity, the traditional principles of modern constitutionalism have been joined by this newly constructed legal theorem. Considering the broad legal interpretation and application of the idea of human dignity, the scholarly discourse has developed a notion of a minimum core of human dignity. Christopher McCrudden formulated the concept as comprising the following three elements: (1) The recognition of the fact that any human being has his or her own value as such, which follows from the fact that he or she is a human being; (2) Certain forms of treatment and conduct are in contradiction with the recognition and respect for human dignity; and (3) The principle that States are created to serve the interest of human beings, and not vice versa.43 When the extreme outcomes of ‘othering’ processes during and after the migrant crisis are contrasted with the teachings of the core of human dignity as a concept, a sharp contradiction comes to light. The objectification and dehumanisation of immigrants as enemies of the state denies their value as human beings. Their human condition is no longer recognised. They are degraded from a position of human subject into a position of a dangerous object which must be dealt with. At the same time, it represents the most effective political move to exclude ‘others’ from society and law, as the rights of existing subjects remain untouched while only ‘the others’ as objects are excluded from the realm of subjective rights. The removal of legal guarantees for human beings opens a way to the realisation of political aims of almost unlimited range, and with terrible consequences, as history has constantly shown.44 42

43

44

C. McCruden, 'Human Dignity and Judicial Interpretation of Human Rights' (2008) 19(4) European Journal of International Law, 655–723. Ibid., p. 679. Further, see, L. R. Barrosso, 'Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse' (2012) 35(2) Boston College International and Comparative Law Review, 360. On the relationship of the political realm and human rights in the condition of political exclusion and objectification see the chapter ‘The Decline of the Nation-State and the End of the Rights of Man’ in H. Arendt, Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973).

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

‘’   

What is more, the denial of humanity endangers not only the position of immigrants themselves; it also has a fundamental impact on all other individuals. This is because human dignity represents the liberal prenormative universal equalisation of all human beings. Thus, denying the dignity of ‘others’ constitutes a denial of the human condition of everyone. In this connection it is necessary to recall that it was exactly the idea of the universal value of human life that stood behind the modern legal concept of human dignity. The French philosopher Jacques Maritain, in the context of the post-war human rights discourse, understood human dignity as a universal inter-cultural common ground for a new understanding of human rights when confronted with problems of consensus over the formulation of the Universal Declaration of Human Rights.45 As such, human dignity, with its universal character and integrating function, stands in contrast with the opposite extreme forms of illiberal ‘othering’. Seen from this angle, the objectification and dehumanisation of persons and groups as enemies must be considered not only as a marginal negation of the core principle of the human rights system, but as a systemic threat to the stability of the post-war human rights discourse because it represents an effective (political) negation of human dignity. This all leads to the systematic impact of political ‘othering’ on the general quality of democratic governance. First, political actors only seem to reach the desired degree of ‘othering’ by inciting fear from the unknown. In this regard, Jan Patočka, an influential Czech philosopher and dissident, when confronted with the fear of persecution under the socialist regime of the Czechoslovak Socialist Republic, noted that the problem of today is to ensure that the motives of human actions do not belong to the realm of fear and privilege but in respect to what is transcendent to humans. That is in understanding of responsibility and common good, as well as in the necessity to be able to accept discomfort, incomprehension and certain risk for these reasons.46

When leaving responsibility for human beings behind as a guiding principle, fear overtakes reason and shows its political potential to

45

46

J. Maritain, Human Rights: Comments and Interpretations: A Symposium (Westport: Greenwood Press, 1973). J. Patočka, ‘What Is and What Is Not Charter 77’, in M. Goetz-Stankiewicz (ed.), GoodBye, Samizdat: Twenty Years of Czechoslovak Underground Writing (Evanston: Northwestern University Press, 1992), pp. 142–144.

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.  ‘’  ‘ ’



deprive humans of their dignity. Thus, fear, albeit artificially created by political discourse, limits the rationality of modern democratic discourse. Fear brings a notion of a fatal, immanent and substantial threat into the realm of politics that must be averted under any circumstance or price and by all means. This includes even the suspension of all limits to power enshrined in modern constitutionalism. Consequently, the fear of an enemy provides a powerful political force to mobilise citizens. Experience in the Visegrád Four countries shows that anti-migration sentiments even manage to persuade a majority of the electorate. In the case of the Czech Republic, the supporters of the current president Miloš Zeman attributed and disseminated false proimmigration statements of Zeman’s opponent Jiří Drahoš during the 2018 presidential election to undermine his campaign. This form of ‘fake news’ spread through social media and contributed to the win of President Miloš Zeman, with 51.36 per cent of votes. Political actors that successfully obtain a formal majority have a tendency to argue that majority rule is the basic fundamental principle of democracy. Through this approach they try to legitimise policies of ‘othering’ aimed at the protection of ‘us’ from ‘the others’. Blackor-white policies aimed at thwarting the alleged enemy overtake nuanced policies that address the real problems of society, based on an alleged mandate by the people. The presence of the alleged ‘enemy’ tends to transform the idea of substantive democracy into a system in which ‘the winner takes all’, and in which the absolute criterion for the legitimacy of public authorities is the majority principle, regardless of the existence of different and dissenting opinions. However, the principle of majority is essentially a quantitative mathematical expression of the majority opinion that does not by itself delegitimise opinions in the position of a numerical minority at a given point in time. The substantive idea that the majority’s decisions must inherently include acceptance and protection of the interests and opinions of the minority, including the ‘others’, and must respect the constitutionally protected values of modern constitutionalism, such as human dignity, is endangered this way.47

47

Further on this topic, e.g. R. Dworkin, ‘What Is Democracy’, in G. A. Tóth (ed.), Constitution for a Disunited Nation: On Hungary's 2011 Fundamental Law (Budapest: Central European University Press, 2012), pp. 25–34.

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

‘’   

3.4 Conclusions: Constitutional Values for ‘Us’ and Nothing for ‘the Others’? The analysis of the processes of ‘othering’ serves as an interesting introspection into the underlying structures of recent political dynamics. Unfortunately, the depth of the divisions created in the realm of politics has reached a stage where it has become a major threat to the values underpinning modern constitutionalism. It is only due to the proper institutional and functional construction of the division of powers, judicial independence, and constitutional review, that many European countries manage to retain modern constitutionalism principles and have been so far able to curb the negative effects deriving from anti-liberal forms of governance and ‘othering’. However, it would not be wise to rely too heavily on this success in the future. Political elites and citizens need to actively focus on retaining a central place for at least a minimum core of human dignity as a liberal prenormative universal equalisation of all human beings upon which the liberal democratic model is based. This applies not only to legal discourse but above all to practical political decisions. Even though any violations of human dignity do not automatically annul the normative centrality of human dignity in moral and legal discourse if they happen outside of the legal sphere, however, they do potentially lead to the possible negation of one of the most fundamental moral and legal norms in post-war Europe. Regular violations of human dignity could become politically acceptable as a consequence. For this reason, it is necessary that European unconcerned democracies start to reverse and deconstruct the idea of hostile ‘others’ under the prism of tolerance and understanding. Deconstruction of ideas of hostile ‘others’ is also necessary for the proper functioning of democratic politics and governance. It will exclude the irrational legitimacy of fear in favour of rational sources of legitimacy capable of dealing with real problems connected to immigration. It will also contribute to inter-group communication and integration. The antiliberal image of ‘others’ divides and actively holds the alleged majority of society in separate spheres, while at the same time complaining that minorities do not integrate with the majority. Because the illiberal concept of immigrant ‘others’ created by receiving societies is impermeable, it casts a double injustice on those who are caught in it. Every kind of integration presupposes an overstepping of the pre-constructed illiberal differentiation. For that reason alone the deconstruction of the idea of hostile ‘others’ represents a precondition to integration.

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. :  



Finally, bringing all parts of society together in the long run would also protect those who today are standing on the side of temporary political power. When constitutional principles are weakened, democratic guarantees against oligarchising the political realm are weakened. Those who cheered along populists against the arrival of ‘others’ may soon become those who are unwanted and threatened themselves via the same mechanisms of ‘othering’ that are unconcerned with equal human dignity. Therefore, the systematic constitutional consequences of anti-liberal ‘othering’ may soon turn against those who enforced it.

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4 The Crimmigrant ‘Other’ at Europe’s Intra-Schengen Borders                  Is it not spies, communists, Jews, Turks or asylum seekers from the Third World who are ultimately behind it? The very intangibility of the threat and people’s helplessness as it grows promote radical and fanatical reactions and political tendencies that make stereotypes and the groups afflicted by them into lightning rods for the invisible threats which are inaccessible to direct action.1

4.1 Introduction: Europe and the Schengen Area Europe is often associated with freedom of movement and the disappearance of borders. The Treaty of Rome that was signed in 1957 was meant to eschew the hostility and division that characterised continental Europe under the reign of Nazi Germany. The notion of ‘Fortress Europe’ in these days referred to the hostile fortification of continental Europe by the Nazi’s in trying to keep out the Allied forces. Nowadays, the reference to ‘Fortress Europe’ aims to illustrate the efforts that have been made to fortify the external borders of Europe in order to keep migrants – refugees especially – at bay by implementing legal and physical barriers to obstruct entry to Europe and facilitate deportation from its territory. Only by protecting the external borders, the Schengen Area – the area within the European Union without internal border controls – could indeed function as a space where there was free movement of goods, services, and people.

This work is part of the 5-year research project ‘Getting to the Core of Crimmigration’ (project number 452-16-003), which is financed through the VIDI research scheme by the Netherlands Organization for Scientific Research (NWO). The author is project coordinator and principal investigator. 1 U. Beck, Risk Society. Towards a New Modernity (London: Sage Publications Ltd, 1992), pp. 75–76.

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. :     

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In the past few years, it has become painfully clear that the free movement of people, the mobility of migrants, put the social fabric of solidarity within the EU to the test. The so-called migration crisis also had direct consequences on the conceptualisation and resignification of European borders. As rightly noted by Jabko and Luhman,2 the arrival into the EU of hundreds of thousands of refugees from the Syrian conflict in 2015 engendered a humanitarian crisis and threatened two institutions of border control: The previously mentioned ‘borderless’ Schengen Area and the Dublin Convention. The Schengen and Dublin agreements rely heavily on discursive practices, quite literally in terms of writing down visions, ratifying them through signatures of heads of state, and making them effective trough specific trade policies, migration regimes, monetary measures, and constitutional agendas. The Dublin convention governs how asylum seekers are registered upon entering EU territory. Under Schengen and Dublin, states retained the right to unilaterally reintroduce border controls and to return asylum seekers to the first country of entry in order to protect an ‘essential aspect of sovereignty’, i.e. control over frontiers.3 In 2015, however, the Dublin system ceased to be effective. Many member states lacked the capacity or the will to process so many asylum applications and even the most refugee friendly states responded by closing their borders. The so-called migration crisis in Europe highlighted the ever present tension between the opportunities and the risks that are inherent to the openness that Europe, and in particular the Schengen area, aims to represent. The migration crisis has led to various kinds of mobilisations of the most regressive and reactionary features of ‘Europeanness’: the protection of the national or supranational territory, the protection of the European people (read white European),4 as well as rejection of the non-European ‘other’. This tension means that Europe is ‘caught’ in the need to simultaneously manage the opportunities and the risks of openness and is referred to as the liberal paradox.5 According to Hollifield, the liberal paradox 2

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N. Jabko and M. Luhman, ‘Reconfiguring Sovereignty: Crisis, Politicization, and European Integration’ (2019) 26(7) Journal of European Public Policy, 1037–1055. M. Schain, ‘The State Strikes Back: Immigration Policy in the European Union’ (2009) 20 (1) European Journal of International Law, 93–109. U. Linke, German Bodies: Race and Representation after Hitler (Philadelphia: University of Pennsylvania Press, 1999); D. T. Goldberg, ‘Racial Europeanisation’ (2006) 29(2) Ethnic and Racial Studies, 331–364. J. F. Hollifield, Immigrants, Markets, and States: The Political Economy of Postwar Europe (Cambridge, MA: Harvard University Press, 1992); J. F., Hollifield, ‘Migration and

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  ‘’  ’

operates ideologically in the politics and policies of Fortress Europe through two commonplace logics or recited truths.6 The first is that freedom in Europe is inherently vulnerable and must thus be approached as a security question. The second is that some people’s uses of freedom are particularly risk-prone, those people are the non-European and potentially dangerous ‘others’ against which protection is necessary. Much has been written about the securitisation of migration and therewith the securitisation of a borderless Europe.7 Although the two truths are intertwined in a way, this chapter intends to focus more on the second truth that lies at the core of the liberal paradox: the truth of a dangerous ‘crimmigrant’ ‘other’ and therewith the risk that is posed by the free movement of people. The aims of this chapter are two-fold. On the one hand it aims to further explore the notion of the ‘other’ and the process of ‘othering’ in relation to the notion of the border and the process of bordering. In so doing, the chapter combines theoretical insight on these, and related, concepts and processes from a broad range of disciplines among which are sociology, criminology, political science, and border studies. On the other hand, the chapter aims to illustrate how the central premise of Fortress Europe has always been restraining mobility for some in order to enable freedom for others and how, especially by looking at the Schengen Border Code (SBC) and the way in which European member states can manage intra-Schengen cross-border mobility, the mobility and free movement of ‘undeserving’ or ‘crimmigrant’ others has always been seen as a valid risk that needed to be minimised. In other words, the chapter will show how bordering and ‘othering’ practices lie at the core of the

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International Relations: Cooperation and Control in the European Community’ (1992) 23 (2) International Migration Review, 568–595; J. F. Hollifield, V. F. Hunt, and D. J. Tichenor, ‘Liberal Paradox: Immigrants, Markets and Rights in the United States’ (2008) 61(1) SMU Law Review, 67–98. A. Lentin, and G. Titley, The Crises of Multiculturalism: Racism in a Neoliberal Age (London: Zed Books, 2011). See for instance: O. Wæver, ‘Securitization and Desecuritization’, in R. Lipschutz (ed.), On Security (New York: Columbia University Press, 1995), pp. 46–86; O. Wæver, B. Buzan, M. Kelstrup and P. Lemaitre, Identity, Migration and the New Security Agenda in Europe (London: Pinter, 1993); J. Huysmans, ‘Migrants as a Security Problem: Dangers of “Securitizing” Societal Issues’, in R. Miles and D. Thränhardt (eds.), Migration and European Integration: The Dynamics of Inclusion and Exclusion (London: Pinter Publishers, 1995), pp. 53–72; B. Bigo, ‘Europe passoire, Europe fortresse. La sécurisation et humanitarisation de l’immigration’, in A. Rea (ed.), Immigration et racisme en Europe (Brussels: Complexe, 1998), pp. 203–241.

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.   ‘ ’?

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European project and how ‘openness’ and the freedom of movement in Europe has become institutionalised to escape the liberal paradox. It is through the securitisation and the reduction of ‘non-European’ bodies and EU member states’ national identity projects that these ‘non-European’ bodies are being made into a ‘necessary other’ that can serve as the ‘lightning rods’ that Beck refers to in the opening quote of this chapter. The necessary ‘others’ serve as scapegoats that have to bear the brunt for uncertain risks to national security and national identity. After discussing various theoretical perspectives on the notion of the ‘other’ and the process of ‘othering’ in general, the chapter will address the ‘other’ in relation to migration mobility in the European Union. The link between migration and border control and the process of ‘othering’ will be further explained before the focus will shift to a closer analysis of the management of intra-Schengen cross-border mobility under Article 23 of the Schengen Border Code.

4.2

Who Is ‘the Other’?

The demonisation and criminalisation of alien ‘others’ over a period of decades is well traced and documented by scholars from a broad variety of disciplines.8 In the social sciences the ‘other’ and the process of ‘othering’ are seen as the basis of our understanding of social dynamics on a macro-, meso-, and micro level.9 The ‘other’ can differ from ‘us’ because of their different religion or different ethno-racial background, but also for (sub)cultural, political, temporal, and special reasons. The ‘other’ can be constructed along one or more of these lines. Yet, what all these ‘others’ have in common is that their image is always constructed in social relationships.10 According to Becker, the label of ‘the other’ does not have an inherent quality legitimising this ‘otherness’; the label seems to legitimise itself. It is the ‘established’, ‘moral entrepreneurs’, those in power who create and maintain the labelling of ‘outsiders’.11 8

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H. Arendt, Men in Dark Times (London: Jonathan Cape, 1968); S. Pickering, ‘Original Deviance and Normality: Representations of Asylum Seekers and Refugees in the Australian Press’ (2001) 14(2) Journal of Refugee Studies, 169–186; M. Lynch, ‘Backpacking the Border: The Intersection of Drug and Immigration Prosecution in a High-Volume US Court’ (2017) 57(1) British Journal of Criminology, 112–131. N. Elias and J. L. Scotson, The Established and the Outsiders (Dublin: University College Dublin Press, 1965). Ibid. H. Becker, Outsiders. Studies in the Sociology of Deviance (New York: The Free Press, 1963).

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  ‘’  ’

Various scholars point at the important social function of creating ‘others’. This functionalist perspective originates from the works of Emile Durkheim. In his 1893 Division du travail social, Durkheim claims that deviance will enhance the connectedness among members of the mainstream society by strengthening their perception of moral superiority over the deviant ‘other’.12 A functionalist approach to an ‘ultimate other’ can be found in the work of René Girard and the critical criminologist Nils Christie. According to Girard, people need scapegoats based on their human rivalry. By aiming their arrows together at a specific ‘other’ and destroying it, they are prevented from violence of all against all.13 Nils Christie’s suitable enemy has a similar function of an ultimate ‘other’ in mind. He also states that a ‘suitable enemy’ helps to close the ranks within mainstream society by creating a common enemy. This enemy must be clearly visible and morally distinctive. On the other hand, from his perspective, another requirement of a suitable enemy is that, unlike Girard, it cannot be destroyed, because it will negatively affect social cohesion.14 As mentioned earlier, how ‘the other’ is constructed also says something about those who create them. Stuart Hall states that (cultural) identities are created in contrast to what they distinguish from, what they are not: the ‘other’. ‘The other’ thus forms a seemingly necessary contrast to arrive at a concept of ‘self’.15 This mechanism is also visible in Said’s classical work Orientalism, in which he describes the process of ‘othering’ of individuals or social groups in terms of creating the social belief that one particular (ethnic or cultural) group is superior to other groups and then, based on that conviction, constantly emphasising the negative cultural value of these ‘others’. Said links this idea of superiority to the imperialism and colonial history of Western societies, keeping certain assumptions about ‘the other’ alive and assessing ‘the other’ on the basis of images that are prevalent in these societies of what civilisation entails.16 While for Said the gap between cultural groups underlies the construction of the ‘other’, Zygmunt Bauman emphasises not only ethnic 12 13 14

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Ibid.; E. Durkheim, Division du travail social (Paris: PUF, 2007 – reprint). R. Girard, La violence et le sacré (Paris: Grasset, 1972). N. Christie, ‘Suitable enemy’, in H. Bianchi and R. van Swaaningen (eds.), Abolitionism: Toward a Non-repressive Approach to Crime (Amsterdam: Free University Press, 1986), pp. 42–54. S. Hall, ‘Introduction: Who Needs “Identity”?’, in S. Hall and P. du Gay (eds.), Questions of Cultural Identity (London: Sage Publications, 1996), p. 4. E. Said, Orientalism (New York: Pantheon Books, 1978).

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.   ‘ ’?

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and cultural, but also socio-economic aspects. He speaks of two specific categories of ‘the other’, to which he also refers as ‘human waste’, i.e. the unemployed and the refugee. The first is excluded from the labour market because he or she has become redundant: ‘. . . the others do not need you, they can do as well, and better without you’.17 A refugee, on the other hand, is excluded from his/her own society, which in globalised society has become a primary source of fear and insecurity. Refugees lose their identity; they are stateless and have no place or function anymore.18 Bauman’s theory of morality is particularly relevant in understanding the dehumanisation and immoral treatment of ‘others’. To Bauman, responsibility evokes a duty to others, a duty to do something, to look out for, to care for others.19 We have this responsibility towards others not because it is strictly an obligation, imposed on us, or a matter of selfinterest or reciprocity, but because this is what it means to be human. For Bauman, responsibility for the other is the foundation of morality, with ‘roots that reach well beneath social arrangements’.20 The refusal to take responsibility for the other – the very definition of immorality – is produced by specific kinds of social processes, namely social distantiation and social separation – the loss of proximity towards others.21 Contemporary social conditions, particularly the widespread use of technology and bureaucracy, facilitate social separation and therewith serve to increase the distance between ‘us’ and ‘them’. In the words of Bauman: ‘Responsibility is silenced once proximity is eroded; it may eventually be replaced with resentment once the fellow human being is transformed into the Other. The process of transformation is one of social separation’.22 It is crucial to note that proximity in this instance is social, not necessarily physical. This process of social ‘othering’ coupled with techniques that dehumanise and devalue other individuals or groups takes place in all spheres of social life.23 As we become socially separated from

17 18 19 20 21 22 23

Z. Bauman, Wasted Lives (Cambridge: Polity Press, 2004), p. 12. Ibid., p. 76. Z. Bauman, Modernity and the Holocaust (Ithaca, NY: Cornell University Press, 1989). Ibid., p. 183. Ibid., p. 184. Ibid. H. C. Kelman, ‘Violence without Moral Restraint: Reflections on the Dehumanization of Victims and Victimizers’ (1973) 29(4) Journal of Social Issues, 25–61; H. C. Kelman and V. L. Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (New Haven, CT: Yale University Press, 1989).

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  ‘’  ’

one another, we feel less and less responsible for the ‘other’. This is how dehumanisation begins and immoral behaviour is justified.

4.3

Bordering and ‘Othering’

Now that ‘the other’ has been identified, it is interesting to look at how the process of ‘othering’ intersects with the process of ‘bordering’: making sure that the self is here and for the ‘other’ to be and to remain there. The term ‘bordering’ refers to the process through which this ‘othering’ is enacted. Bordering allows for the figure of the ‘other’ to become embodied, recognised, and/or reproduced in a physical form. It determines the extent to which people are included, or excluded, from membership in groups, they reflect the existence of inter-group and inter-societal difference with the ‘us’ and the ‘here’ being located inside the border while the ‘other’ and the ‘there’ is everything beyond the border. Van Houtum and Langedijk speak of ‘the paradox of borders’: ‘This paradoxical character of bordering processes whereby borders are erected to erase territorial ambiguity and ambivalent identities in order to shape a unique and cohesive order, but thereby create new or reproduce latently existing differences in space and identity – is of much importance in understanding our daily contemporary practices’.24 Over the past couple of years much has been written about the diffusion of borders and the fact that understanding borders only as a physical demarcation line between two nation states will lead to too narrow of an understanding of what borders have become.25 The term ‘border’ is no longer only synonymous with the geopolitical boundaries of the Westphalian system.26 Therefore, several concepts have been adopted in the literature to illustrate the fact that borders have become much for fluid and that states are deploying various bordering practices all throughout the country through which borders are demarcated and

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H. van Houtum and A. Lagendijk, ‘Contextualising Regional Identity and Imagination in the Construction of New Policy Configurations for Polycentric Urban Regions, the Cases of the Ruhr Area and the Basque Country’ (2001) 38(4) Urban Studies, 743–764. On the growing necessity to study borders and bordering from an interdisciplinary perspective: D. Newman, ‘Borders and Bordering: Towards an Interdisciplinary Dialogue’ (2006) 9(2) European Journal of Social Theory, 171–186. S. Okhonmina, ‘States without Borders: Westphalia Territoriality under Threat’ (2010) 24 (3) Journal of Social Sciences, 177–182.

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.   ‘’

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delimited.27 These practices reflect the way in which borders are managed and self-perpetuated to the benefit of political and economic elites, but to the detriment of many others.28 Therefore, like ‘othering’, the act of bordering is to be seen as a social and discursive construct which reflects political strategies and ideologies.

4.3.1 ‘Bordering’ and National Identity Bordering practices and border control are often seen as an important expression of state sovereignty. By means of these practices the state demonstrates its claim to power and signals its ability to fulfil its duties.29 Expending significant political, material, and ideological efforts on border policing regimes is rightly regarded as the heart of the regulatory effort to sustain national sovereignty.30 But border control is much more than a business card of state sovereignty. Border control and bordering practices are also seen as an important defense mechanism to ensure the survival of national cultures.31 To give up control of territorial borders is to relinquish one powerful instrument in the production of national cultures, as borders mitigate social pluralisation, which in turn is a political challenge to the hegemony of state-sanctioned modes of national existence.32 National identity can only be established through contradictions and exclusions. As Bosworth et al. observe: ‘The high octane public and political debates over immigration, particularly in relation to asylum seekers have often been marked by emotionally and exclusionary use old

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C. Brambilla, ‘Exploring the Critical Potential of the Borderscapes Concept’ (2015) 20(1) Geopolitics, 14–34; J. Agnew, ‘Borders on the Mind: Re-framing Border Thinking’ (2008) 1(4) Ethics & Global Politics, 175–191; G. E. Anzaldúa, Borderlands/La Frontera: The New Mestiza (San Francisco: Aunt Lute Books, 1999); W. D. Mignolo and M.V. Tlostanova, ‘Theorizing from the Borders: Shifting to Geo- and Body-Politics of Knowledge’ (2006) 9 (2) European Journal of Social Theory, 205–221. Newman, ‘Borders and Bordering: Towards an Interdisciplinary Dialogue’. A. Pudlat, ‘Perceptibility and Experience of Inner-European Borders by Institutionalized Border Protection’ (2010) 29(4) Questions Geographicae, 7–13. M. Bosworth, K. Franko, and S. Pickering, ‘Punishment, Globalization and Migration Control: “Get Them the Hell Out of Here”’ (2018) 20(1) Punishment & Society, 34–53. S. Sassen, Guests and Aliens (New York: New Press, 1999). G. Vasilev, ‘Open Borders and the Survival of National Cultures’, in L. Weber (ed.), Rethinking Border Control for a Globalizing World (New York: Routledge, 2014), pp. 98–115.

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  ‘’  ’

racial, gendered and religious tropes. The deserving and the undeserving, the genuine and the bogus are elided in an exclusionary push justified by unbridled electoral and populist politics’.33 Border zones, or frontiers, are sites of social sorting and delineate who belongs and who does not. Border zones and the border practices taking place in these zones therefore should also be seen as serving a nation-building and identity establishing function. Borders and mobility policing are not only used as inclusionary and exclusionary mechanisms in this respect, they also symbolically visualise state power and national? identity. As Gundhus and Franko observe, ‘borders and the policing of borders and border zones not only serve to define the nature of a polity’.34 By policing the mobility brought about by the ongoing globalisation of society, local order and security regimes are created and shaped by local notions of social order and belonging. While seemingly preoccupied with mundane questions of border control, ID documents, visas and residence permits, mobility policing revolves around questions of social boundaries, distinguishing between members and non-members within the territory and expelling the unwanted presence of non-members. Bordering and ‘othering’ thus go hand in hand as both serve the clear goal of identifying and creating clarity on who belongs to the in-group and who doesn’t. Both through ‘harder’ and more clear acts of bordering and border policing – being stopped in a border zone or at a border – as well as through ‘softer’ and more or less subtle bordering practices – categorising and ordering people on a discursive level – unwanted (groups of ) individuals are being hindered in their mobility. As Raj mentions, by using the category of ‘migrant’, the EU constructs the non-European, and reduces and demonises a group of diverse people.35 In doing so, these people, according to Raj, are forced to become the border. The embodiment of the border by these persons is necessary to constitute the boundary between EU citizens and non-EU bodies who are constructed as both an economical and a security ‘threat’ to the Union as a whole, but also to its individual member states.

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Bosworth et al., ‘Punishment, Globalization and Migration Control’. H. Gundhus and K. Franko, ‘Global Policing and Mobility: Identity, Territory, Sovereignty’, in B. Bradford, B. Jauregui, and I. Loader (eds.), The SAGE Handbook of Global Policing (London: SAGE Publications, 2016), p. 501. K. V. Raj, ‘Paradoxes on the Borders of Europe’ (2006) 8(4) International Feminist Journal of Politics, 512–534.

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.   ‘’

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4.3.2 Intra-EU ‘Othering’ and Bordering What is interesting is that these bordering and ‘othering’ practices do not just seem to affect non-European bodies, but also European bodies. The ‘other’ within is enacted and constructed by and with EU citizens through the securitisation of certain faiths, bodies, and practices. In discussing and problematising the existence of a European identity, Ammaturo observes that, although whiteness has been the historically predominant framework of reference in terms of racial and ethnic identity of the continent,36 at least from colonial times onwards,37 within the same framework of whiteness, there are internal articulations of ‘otherness’ focusing in particular on Eastern38 and Southern European countries.39 These post-colonial and neocolonial dynamics within Europe are reflected by the imposition by some western European member states of restrictions on the social welfare rights of immigrants from recent accession states in eastern Europe as well as the growing number of intra-EU deportations and transfers, as citizens from Eastern European states are forcibly removed from the West.40 In recent years, the securitisation of Islam has also led to the ethnicisation of Muslims,41 who have been represented and categorised as another ‘other’ and ‘enemy’ within the EU.42 As demonstrated by the Brexit vote in the UK as well as the overall rise of Islamophobia within Europe, these differentiations between ‘core’ Europeans and ‘other’ Europeans, where the latter are also seen as unworthy, have an important effect when it comes to narratives about intra-European migration.43 These differentiations essentialise and

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F. R. Ammaturo, ‘Europe and Whiteness: Challenges to European Identity and European Citizenship in the Light of Brexit and the “Refugees/Migrants Crisis”’ (2019) 22(4) European Journal of Social Theory, 548–566. A. Bonnett and A. Nayak, ‘Cultural Geographies of Racialisation: The Territory of Race’, in K. Anderson, M. Domosh, S. Pile, and N. Thrift (eds.), Handbook of Cultural Geography (London: Sage, 2003), p. 302. M. Kuus, ‘Europe’s Eastern Expansion and the Reinscription of Otherness in East-Central Europe’ (2004) 28(4) Progress in Human Geography, 472–489. P. Zaccaria, ‘(Trans)MediterrAtlantic Embodied Archives’ (2015) 8(1) Journalism, Media and Cultural Studies Journal, 1–18. V. Barker, ‘Nordic Vagabonds: The Roma and the Logic of Benevolent Violence in the Swedish Welfare State’ (2017) 14(1) European Journal of Criminology, 120–139. R. Bloul, ‘Anti-discrimination Laws, Islamophobia, and Ethnicization of Muslim Identities in Europe and Australia’ (2008) 28(1) Journal of Muslim Minority Affairs, 7–25. I. Karolewski, ‘European Identity Making and Identity Transfer’ (2011) 63(6) EuropeAsia Studies, 935–955. Raj, ‘Paradoxes on the Borders of Europe’, pp. 512–534

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  ‘’  ’

normalise what is a heavily ideological – in fact, heavily racialised and gendered – construct, namely that all people are inclined to excessive uses of freedom, but some more than others. Tsianos and Krakayali have argued that since the 1999 Treaty of Amsterdam of the European Union, there has been a process of the creation of a ‘European Border Regime’, where the word regime appears to be closely associated with practices of bargaining and negotiation (. . .) Deprived of their immediate geo-political significance, borders and bordering practices can become an epistemological device that serves the purpose of laying the groundwork for the construction of coherent narratives of ‘Core Europeanness’, catalyzing specific forms of knowledge to the detriment of others.44

4.4 Controlled Free Movement in the Schengen Area45 ‘Othering’ and bordering are, and always have been, very prevalent within the European Union. As mentioned in Section 4.1, when discussing the so-called liberal paradox, there has always been a tension within the European Union – in particular the Schengen Area – between wanting the free movement of goods, capital and services and the free movement of people. The free movement of the latter has, from the very onset of the deliberations on the Schengen Agreement, been flagged as a potential risk to national security whereas the free movement of goods, capital and services was seen as an important opportunity and necessity for economic growth. The free movement of people, Hollifield argues, poses a much bigger ‘political risk’ to the protection of the ‘demos, . . . the integrity of the community and . . . the social contract’ than the movement of goods, capitals and services does.46 Mobility and fixating thus seem to go hand in hand and often in a self-reproducing continuous cycle. In the words of Rodriguez: ‘The global landscape in the late 20th 44

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V. Tsianos and S. Karakayali, ‘Transnational Migration and the Emergence of the European Border Regime: An Ethnographic Analysis’ (2010) 13(3) European Journal of Social Theory, p. 374. This section partially draws from previous work from the author as published in: M. A. H. van der Woude, ‘Border Policing in Europe and Beyond: Legal and International Issues’, in M. den (red.) Boer, Comparative Policing from a Legal Perspective. Research Handbooks in Comparative Law (Cheltenham: Edgar Elgar Publishing, 2018), pp. 255–271. J. F. Hollifield, ‘The Emerging Migration State’ (2004) 38(3) International Migration Review, 885–912.

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century presents a dramatic socio-geographical picture: the movement across world regions of billions of capital investment dollars and of millions of people, and concerted attempts to facilitate the former and restrict the latter.’47 In the post-modern performance game between places, others are welcome, but some others are more welcome than ‘other’ others. The discrepancy between wanting but also fearing openness and free movement is also visible when looking at the different regulatory frameworks governing the European Union. On the one hand, the intent and desire of an open Europe are reflected by the Treaty of Rome48 and the Maastricht Treaty of 1991,49 creating a single market and a monetary union. The Dublin Agreement50 and the Schengen Acquis,51 on the other hand, can be seen as instructions on whose free movement may be limited or privileged. More specifically, the Dublin regulations, initially posited to secure the rights of refugees, are now used to legitimise their rejection. The same holds for the Schengen agreement. Ironically, the establishment of an area without borders has effectively stimulated border control, since the notion that European integration via the opening of internal borders would lead to an increase in crime and criminal organised groups became the shared belief underpinning Schengen.52 In particular, third country nationals and irregular migrants were increasingly seen as potential safety risks. In response to the lifting off of

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N. Rodriguez, ‘The Battle for the Border: Notes on Autonomous Migration, Transnational Communities, and the State’, in S. Jonas and S. Dod Thomas (eds.), Immigration: A Civil Rights Issue for the Americas (Lanham: Rowman & Littlefield, 1998), p. 27. Treaty establishing the European Economic Community (also known as the Treaty of Rome). International agreement, signed in Rome on March 25, 1957, by Belgium, France, the Federal Republic of Germany (West Germany), Italy, Luxembourg, and the Netherlands, that established the European Economic Community (EEC), creating a common market and customs union among its members. The Maastricht Treaty (officially the Treaty on European Union) was signed on 7 February 1992 by the members of the European Communities in Maastricht, Netherlands, to further European integration. Regulation No. 604/2013; sometimes the Dublin III Regulation; previously the Dublin II Regulation and Dublin Convention. The Schengen acquis – Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal L 239, 22/09/2000 P. 0013–0018. A. Atger, The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of Movement or a Scattered Web of Security Checks? (CEPS Challenge Paper No. 8, 20 March 2008).

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  ‘’  ’

border checks between two Schengen countries, the signatory countries pushed for compensatory measures to counter the perceived risks of uncontrolled irregular migration and cross border crime. Among these measures were the reinforcement of external border control as well as police and judicial cooperation, common visa and asylum policies and the use of databases such as the Schengen Information System (SIS)53 or the European Dactylographic System (Eurodac)54 to keep track of intraSchengen mobility. The call for these ‘compensatory’ measures seems to echo the more general sense of unease around immigration in Europe that can be traced back to the 1980s when immigration – and in particular asylum issues – started to become more and more politicised. It is from this moment onwards that migration is started to be identified as being one of the main factors weakening national traditions and social and cultural homogeneity. According to Ibrahim, it is as a result of this obsession with cultural homogeneity that immigrants have become increasingly linked with ‘the demise of the nation’, leading to an increase in overtly racialised ‘othering’.55 As explained by Hollifield, governments can ‘escape’ the liberal paradox through what he terms the ‘institutionalization of openness’.56 They can, for example, simultaneously roll out specific EU trade politics and migration regimes to enable an ‘equilibrium’ between openness and closure.57 Moreover, the concept suggests that this tension can be solved through adequate political management, i.e. the clever political mixing, matching, and interpreting of policies resolving the dilemma. When taking a closer look at the Schengen Border Code and the different ways in which various countries have used the discretionary space embedded in the Code to find modalities to – despite the freedom of movement – control intra-Schengen cross-border mobility, it becomes clear how countries are cleverly trying to manage the migration issue. As in the 53

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Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) OJ L 381, 28 December 2006, pp. 4–23. http://data .europa.eu/eli/reg/2006/1987/oj Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) OJ L 180, 29 June 2013. M. Ibrahim, ‘The Securitization of Migration: A Racial Discourse’ (2005) 43(5) International Migration, 163–187. Woude, ‘Border Policing in Europe and Beyond: Legal and International Issues’. See fn. 6 for references to Hollifield. Boer, Comparative Policing from a Legal Perspective. Research Handbooks in Comparative Law, p. 900.

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re-installation of borders between EU countries in late 2015, the ‘once you are in, you are in’ logic of Schengen no longer guarantees the privilege of travelling freely. Instead it is used to licence measures to scale up and step up the patrol of Europe’s internal and external borders.

4.4.1 Schengen Proof Bordering Other than what is often thought or imagined, the implementation of the Schengen Agreement was never meant to deprive countries from all forms of border management. True, as a result of Article 20 SBC, ‘[i]nternal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out’, yet this doesn’t mean that countries could not perform checks in the border zones around the physical border. This is clearly stated in Article 23 SBC, which states: ‘The abolition of border control at internal borders shall not affect the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks.’ Article 23 allows countries to exercise police powers – and to carry out identity and immigration checks in intra-Schengen border zones, as long as: (1) the exercise of these powers cannot be considered equivalent to the exercise of border checks, (2) the police measures do not have border control as an objective, (3) they are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, and lastly (4) as long as the measures are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and are carried out on the basis of spot-checks.58 Article 23 SBC doesn’t require close scrutiny to reach the conclusion that the article provides Schengen member states a lot of discretionary space in how to actually implement and use the article. Over the years, the discretionary space, or room for interpretation left in the wording of Article 23 SBC, has been discussed by the CJEU in several cases against Germany, France, and the Netherlands.59 This limited line of case law shows that the CJEU seems to follow 58 59

Woude, ‘Border Policing in Europe and Beyond: Legal and International Issues’. CJEU 19 July 2012, C-278/12, Adil ECLI: C: 2012:508 (against the Netherlands); CJEU 22 June 2010, C-188/10, Melki & Abdeli ECLI: C: 2101:363 (against France); CJEU 21 June 2017, C-9/16, Criminal proceedings against A ECLI:EU:C:2017:483 (against Germany).

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  ‘’  ’

a rather clear and strict line of reasoning by consistently stating that the national framework that member states use to act in line with Article 23 SBC must ‘guide the discretion that national authorities enjoy in the practical application of their powers’ and prevent these checks from being a ‘veiled’ form of permanent border control and therewith at odds with the principle of free movement. The CJEU further states that the checks should be carried out randomly and based on ‘general police information’ and ‘experiences regarding possible threats to public security’, conditions that are still very open and rather vague, leaving room for narratives of the unwanted ‘other’ to play a role in street-level decisionmaking in these border areas. The results of the room for interpretation that Article 23 SBC allows are also reflected by the outcomes of an ad-hoc query that was launched on 4 June 2018 by Dutch National Contact Point [DNCP] of the European Migration Network [EMN].60 The query questioned the member states about Intra-Schengen border monitoring and border control, with the aim to provide a first insight into the extent to which the ‘law in the books’, the Schengen Border Code, resulted in similarities or differences between the ‘law in action’ in the different countries. The query, among other things, shows that all countries that responded are indeed doing ‘something’ in their intra-Schengen border zones.61 This immediately illustrates the false premise of free movement in the Schengen area. These EMN data reveal considerable variety in the institutional arrangements related to border policing and immigration control. Criminal justice and immigration elements form a number of assemblages.62 These arrangements are marked by a growing intersection between immigration control and criminal justice termed by Bowling and Westenra,63

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A summary of the findings of the query can be found at the website of the EMN: https://ec .europa.eu/home-affairs/sites/homeaffairs/files/2018.1303-intra-schengen_border_monitor ing_and_border_control.pdf, last accessed July 2019. The countries that responded were: Austria, Belgium, Croatia, Cyprus, Czech Republic, Estonia, Finland, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Poland, Slovak Republic, Slovenia, Sweden, United Kingdom, and Norway. K. F. Aas, ‘The Ordered and the Bordered Society: Migration Control, Citizenship and the Northern Penal State’, in K. F. Aas and M. Bosworth (eds.), The Borders of Punishment: Migration, Citizenship and Social Exclusion (Oxford: Oxford University Press, 2013), pp. 21–39. B. Bowling and Westenra, S., ‘Racism, Immigration and Policing’, in M. Bosworth, A. Parmar, and Y. Vazquez (eds.), Race, Criminal Justice and Migration Control: Enforcing the Boundaries of Belonging (Oxford: Oxford University Press, 2017), pp. 61–77.

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Guia et al.,64 and Stumpf65 as ‘crimmigration control’. This is clearly reflected by the described aim of the different bordering practices that are being deployed. All countries report that the measures are driven by a logic of risk for national security and the prevention of crime and irregular migration. Countries are feeling the pressure in their intraSchengen border zones and actively adopt a language of risk and develop rhetorical campaigns based on fear, such as the ‘war on terrorism’ or the ‘war on migration’, in order to foster the securitisation of national and transnational spaces and to provide an enduring excuse for ethno-racial ‘othering’ and the potential violation of European rules and regulations.66

4.4.2 Schengen Proof ‘Othering’ Looking at the SBC, it seems safe to say that it creates discretionary space for member states to autonomously decide how they want to carry out police checks, where, for how long, and with what aim. This might be considered as problematic, or at least remarkable, given the ‘freedom of movement’ principle and the lifting of formal border control as one of the key features of the European Project. These ambiguities in the SBC demonstrate that much of the actual implementation of these police checks has been left to the discretion of member states. And as has been argued widely, considerable discretionary freedom in combination with the need to engage in ‘social sorting’67 leads to a ‘heightened potential for abuse and disrespect of fundamental rights’.68 Although empirical research into ‘on the ground’ street-level bordering practices in intraSchengen border zones is still rather scarce,69 the research that is out

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M. J. Guia, M. van Der Woude and J. van Der Leun (eds.), Social Control and Justice: Crimmigration in the Age of Fear (The Hague: Eleven International Publishing, 2013). J. Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime and Sovereign Power’ (2006) 56(2) American University Law Review, 367–419. J. McCulloch and J. Tham, ‘Secret State, Transparent Subject: The Australian Security Intelligence Organisation in the Age of Terror’ (2005) 38(3) Australian and New Zealand Journal of Criminology, 400–415. D. Lyon, ‘Surveillance, Security and Social Sorting: Emerging Research Priorities’ (2007) 17(1) International Criminal Justice Review, 161–170. K. Côté-Boucher, ‘The Paradox of Discretion: Customs and the Changing Occupational Identity of Canadian Border Officers’ (2016) 56(1) British Journal of Criminology, 49–67. B. Loftus, ‘Border Regimes and the Sociology of Policing’ (2015) 25(1) Policing and Society, 115–125.

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  ‘’  ’

there70 as well as research focusing on the modus operandi of border control officials in other parts of the world71 shows that it is in these border regions where the state – through the actions and decisions of state agents – gets to act out racialised and securitised ‘othering’ practices in the name of national sovereignty and national security. Particularly striking in that sense is the observation by Brouwer et al. of the existence of what they call strong ‘crimmigrant’ stereotypes within the Royal Netherlands Marechaussee, the military police force responsible for the Article 23 SBC checks in the Dutch borderlands with Germany and Belgium.72 These ‘crimmigrant’ stereotypes were based on the assumption that certain groups of migrants could be associated with certain forms of crime. Interestingly enough, besides having stereotypical views on the criminal involvement of non-EU migrants, several of the crimmigrant stereotypes were about EU citizens – Poles, Hungarians, Romanians – which illustrates the notion of intra-EU ‘othering’.

4.5 Concluding Reflections The conditions for ‘othering’ are embedded in the EU and in the instruments said to ‘govern’ the principle of free movement. Although actual border checks – for the most – have been eliminated, due to the possibilities offered by Article 23 SBC to perform ‘scattered’ checks in the 70

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S. Casella Colombeau, ‘Policing the Internal Schengen borders – Managing the Double Bind between Free Movement and Migration Control’ (2017) 27(5) Policing and Society, 480–493; J. Brouwer, M. van der Woude and J. van der Leun, ‘(Cr)immigrant Framing in Border Areas: Decision-Making Processes of Dutch Border Police Officers’ (2018) 28(4), Policing and Society, 448–463; M. A. H. van der Woude and J. P. van der Leun, ‘Crimmigration Checks in the Internal Border Areas of the EU: Finding the Discretion That Matters’ (2017) 14(1) European Journal of Criminology, 27–45; T. J. M. Dekkers, ‘Mobility, Control and Technology in Border Areas. Discretion and Decision-making in the Information Age’, PhD thesis, Leiden University (2019). J. Heymans, ‘U.S. Immigration Officers of Mexican Ancestry as Mexican Americans, Citizens and Immigration Police’ (2002) 43(3) Current Anthropology, 479–507; I. Vega, ‘Empathy, Morality, and Criminality: The Legitimation Narratives of U.S. Border Patrol Agents’ (2018) 44(15) Journal of Ethnic and Migration Studies, 2544–2561; A. Pratt, Securing Borders Detention and Deportation in Canada (Toronto: UCB Press, 2006); A. Armenta, Protect, Serve, and Deport: The Rise of Policing as Immigration Enforcement (Berkeley: University of California Press, 2017). Brouwer et al., ‘(Cr)immigrant Framing in Border Areas’, pp. 448–463. The Schengen acquis – Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal L 239 , 22 September 2000 P. 0013–0018.

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.  

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intra-Schengen areas, the border is now nowhere yet everywhere at the same time.73 The ever growing nationalist and anti-immigration political and public discourse, combined with low harmonisation, weak monitoring, low solidarity, and lack of strong institutions in EU migration policy has created an environment in which ‘core’ Europeans seem to be able to move more freely through the Schengen area. As Van Houtum already rightly noted in 2010, the EU has failed in its agenda of ‘producing a zone of peace and comfort ruled by law and order’74 and is now an actor which engages in a ‘self-proclaimed war on illegal migrants and has created a border industry that constructs more, not less, “illegality”, xenophobia and fear’.75 An observation that only rings more true in the current day and age based on the way in which the European Union has dealt with the so-called migration crisis. Although the chapter has shown that these processes have always been part and parcel of the European Union, as a result of the migration crisis the processes of bordering and ‘othering’ have enhanced and intensified. It almost seems as if a large part of the European population was not fully aware of the increasing liquidity, fluidity, and the forces of globalisation and deterritorialisation until the onset of the said ‘crisis’.76 This has led to a fundamental and profound questioning of the concept of European citizenship and European identity. As Ammaturo puts it: ‘Mediated by the notion of crisis, this triangular dynamics [between migration, “bordering/othering” and notions of European identity, MW] is effectively shaping Europe as a continent continuously characterised by points of criticality, uncertainty and forms of defence and strategic retreat into national(ist) conceptions of belonging’.77 The proliferation of bordering practices reveals intricate connections between identity, citizenship, 73

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The Schengen acquis – Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal L 239 , 22 September 2000 P. 0013–0018. H. van Houtum, ‘Human Blacklisting: The Global Apartheid of the EU’s External Border Regime’ (2010) 28(6) Environment and Planning D: Society and Space, 957–976. The Schengen acquis – Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal L 239 , 22 September 2000 P. 0013–0018. Z. Bauman, Liquid Modernity (Cambridge: Polity Press, 2000); A. Paasi, ‘Region and Place: Regional Identity in Question’ (2003) 27(4) Progress in Human Geography, 475–485. Ammaturo, ‘Europe and Whiteness’, p. 563.

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  ‘’  ’

penal power, and social exclusion. These connections may be equally or even more pronounced in societies that are traditionally considered to be less punitive and less committed to human rights.78 It is therefore not surprising that various countries in (North-)West Europe are the most active in monitoring and managing mobility in their intra-Schengen border zones by means of the Article 23 SBC checks or even by temporarily reintroducing actual border checks under Article 29 SBC. Coming back to Bauman‘s notion of morality, it is important to undo – or to reverse – the process of social separation as a result of which we don’t feel responsible for ‘the other’ anymore and as a result of which we don’t see the added value of and the potential for enrichment by means of interacting with ‘others’. By eroding the proximity between ‘us’ and ‘the other’ it becomes easy to buy in to the populist and nationalist narratives on the dangers that these, often racialised, ‘others’ pose to use. As we become socially separated from one another, we feel less and less responsible for the ‘other’ and more inclined to treat them in an immoral way. An important call for further reflection on this notion in relation to border control and bordering practices comes from Barker, who writes: ‘Thinking more deeply about morality, we might come to understand racism not as a sufficient factor in border control but one that is itself bound up with the production of immorality, a step along the way towards social separation that alleviates any sense of responsibility rather than a raw expression of antipathy or hostility’.79 Barker’s reflection resonates with the main observation of this chapter that the ‘othering’ and bordering that seemingly ‘all of a sudden’ became visible after the onset of the 2015 migration crisis has always been part of ‘Europe’. This realisation seems to be too easily forgotten as a result of which it becomes easier to dismiss the current upsurge of restrictive bordering and other practices as well as the growing anti-immigrant sentiments as an exceptional situation, rather than to admit to the fundamentally exclusionary foundation of the European Union. 78

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See for instance: K. Franko, M. A. H. van der Woude, and V. Barker, ‘Beacons of Tolerance Dimmed? Migration, Criminalization and Hospitality in Welfare States’, in T. Wyller, K. Franko, S. Bendixsen, and K. Rønsdal (eds.), Migrantscapes: Hospitalities and Counterspaces in a Nordic Context (Abingdon: Routledge, 2019), pp. 55–75. V. Barker, ‘On Bauman’s Moral Duty: Population Registries, REVA and Eviction from the Nordic Realm’, in A. Eriksson (ed.), Punishing the Other. The Social Production of Immorality Revised (London: Routledge, 2016), p. 188.

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5 The ‘Others’ amongst ‘Them’ – Selection Categories in European Resettlement and Humanitarian Admission Programmes                               5.1 Introduction: Setting the Scene This chapter looks at categorisations as a form of ‘othering’ in the context of European refugee resettlement.1 Official selection categories determine who can safely and legally get protection in Europe. Thereby, selection categories create privileged access for a selected few, who – permanently or temporarily – can become part of ‘us’ in the resettlement countries’ societies. As such, selection categories in resettlement provide insights into states’ preferences, especially when given the possibility to effectively select refugees before they present themselves at the border. The present chapter provides a panoramic view of official selection categories of the United Nations High Commissioner for Refugees [UNHCR], European Member States,2 and the European Union [EU]. Categorisations in resettlement programmes are ways of ‘othering’ within the group of refugee ‘others’, excluding but also including according to three logics: humanitarian, security, and assimilability. Our analysis shows that, while resettlement claims to be a humanitarian policy for the ‘most vulnerable’, European states’ also deploy security and assimilability logics for their selection. Recent EU propositions to harmonise resettlement suggest that the EU seeks to promote a combination of all three logics for Member States’ refugee selection.

We would like to thank Dvora Yanow, Marieke de Goede, Liza Mügge, and Saskia Bonjour for their encouraging and constructive feedback on earlier versions of this chapter. 1 The data presented in this chapter covers both resettlement and humanitarian admission programmes. For ease of reading and given the limited word count, we use resettlement as an umbrella term for both resettlement and humanitarian admission programmes. 2 Although not part of the EU, Norway also took part in the EMN study. For ease of reading we do not mention Norway seperately when speaking of ‘Member States’.

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

 ‘’  ‘’

In response to the so-called refugee crisis, European states have either set up new resettlement and humanitarian admission programmes or expanded existing ones.3 In 2018, European states have committed to resettling 50,000 refugees until the year 2020.4 Yet, in selecting refugees, European states and the UNHCR are confronted with a dilemma: the number of refugees ‘in need of resettlement’ far exceeds the available resettlement quotas.5 Given that resettlement is an option for less than one per cent of the global refugee population, how do resettlement states set the boundaries to include and exclude among these individuals?6 According to UNHCR, resettlement represents a ‘durable solution for the most vulnerable refugees’.7 However, there is no right to resettlement; states are free to decide whether to engage in resettlement or not.8 As resettlement is a voluntary commitment for states, resettlement countries are relatively free to define their own priorities for their selection.9 States decide not only who most urgently requires access to protection but also who is granted access to the nation state, its community, and resources. Especially in today’s political climate, where migration is discussed as a security issue and integration concerns are being brought to the forefront of political debate, European states’ refugee selection process is being put under significant pressure.10

3

4

5 6

7

8

9

10

H. Beirens and S. Fratzke, Taking Stock of Refugee Resettlement. Policy Objectives, Practical Tradeoffs, and the Evidence Base (Brussels: Migration Policy Institute, 2017), p. 6. European Commission, ‘European Agenda on Migration: Continuous Efforts Needed to Sustain Progress’, press release, 14 March 2018, available at http://europa.eu/rapid/pressrelease_IP-18-1763_en.htm, last accessed 18 July 2019. UNHCR, Projected Global Resettlement Needs 2020 (Geneva: UNHCR, 2019). UNHCR, ‘Less than 5 Per cent of Global Refugee Resettlement Needs Met Last Year’, 19 February 2019, available at www.unhcr.org/news/briefing/2019/2/5c6bc9704/5-centglobal-refugee-resettlement-needs-met-year.html, last accessed 16 July 2019. UNHCR Turkey ‘Resettlement’, available at https://help.unhcr.org/turkey/resettlement/, last accessed 16 July 2019. UNHCR, ‘Frequently Asked Questions about Resettlement’, April 2012, available at www .unhcr.org/protection/resettlement/4ac0873d6/frequently-asked-questions-resettlement.html, last accessed 16 July 2019. See also A. Garnier, K. B. Sandvik and L. L. Jubilut ‘Introduction Refugee Resettlement as Humanitarian Governance’, in A. Garnier, K. B. Sandvik and L. L. Jubilut (eds.), Refugee Resettlement. Power, Politics and Humanitarian Governance (New York: Berghahn, 2018), pp. 2–27. J. Huysmans, ‘The European Union and the Securitization of Migration’ (2000) 38(5) JCMS: Journal of Common Market Studies, 751–777; R. Andersson, ‘Hardwiring the Frontier? The Politics of Security Technology in Europe’s “Fight against Illegal Migration”’ (2016) 47(1) Security Dialogue, 22–39; E. Guild, ‘International Terrorism and EU Immigration, Asylum and Borders Policy: The Unexpected Victims of 11 September 2001’ (2003) 8(3) European Foreign Affairs Review, 331–346.

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.  



Scholarly work has shown that, in addition to purely humanitarian concerns, resettlement states also take into account their own strategic interests.11 Hashimoto, for instance, has classified official selection criteria in refugee admission programmes as either vulnerability or integration-oriented to better understand which policy objectives underlie states’ engagement in this policy field.12 Bringing these scholarly advancements into dialogue with the concept of ‘othering’ allows for an understanding of selection categories as boundaries between ‘us’ and ‘them’. On paper and enacted in practices, categories police the imagined, legal, and material boundaries between the out-group of refugees and the in-group of a nation-state. Categories do not only set the boundaries of inclusion and exclusion within the group of ‘others’, but also express the in-groups’ self-understanding. We propose that categorisations in resettlement and humanitarian admission ‘other’ along three different logics: humanitarian, security, and assimilability. To understand how these logics shape Europe’s current boundaries of inclusion and exclusion in refugee protection, we analysed key policy documents of the EU and UNHCR, and the 2016 country reports of the European Migration Network [EMN] on resettlement and humanitarian admission. The structure of this chapter is as follows. First, we provide a brief overview of resettlement as a policy instrument in global refugee governance and explain how selection categories matter in the process of refugee selection. Secondly, we conceptualise categorisations as three logics of ‘othering’. Thirdly, we apply this lens to UNHCR’s, European states’, and the EU’s selection categories, which in practice mutually shape one-another in their implementation.

5.2

Refugee Selection in Resettlement and Humanitarian Admission Programmes

UNHCR defines resettlement as ‘the selection and transfer of refugees from a State in which they have sought protection to a third State which

11

12

M. O’Sullivan, ‘The Ethics of Resettlement: Australia and the Asia-Pacific Region’ (2016) 20(2) The International Journal of Human Rights, 241–263; A. Garnier, L. L. Jubilut, and K. B. Sandvik (eds.), Refugee Resettlement: Power, Politics, and Humanitarian Governance, Studies in Forced Migration, Vol. 38 (New York: Berghahn Books, 2018). N. Hashimoto, ‘Refugee Resettlement as an Alternative to Asylum’ (2018) 37(2) Refugee Survey Quarterly, 162–186.

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

 ‘’  ‘’

has agreed to admit them – as refugees – with permanent residence status’.13 This is different from humanitarian admission, which provides only temporary protection, usually for the duration of an acute regional conflict. Resettlement is seen to fulfil three ‘equally important functions’.14 First, it is used to express international solidarity with first countries and regions of asylum who host a disproportionate number of refugees. Second, it is a tool which provides international protection to refugees, especially for those with special needs, who cannot be accommodated by the countries where they initially sought refuge. Third, alongside integration and voluntary repatriation, resettlement is a durable solution for larger groups of refugees. For admission to a European resettlement or humanitarian admission programme, European states’ selection categories are only one among many formal boundaries that determine refugees’ access. For instance, in the current admission programmes under the EU–Turkey deal,15 the Turkish migration authority is the first body to examine cases and refers those deemed to have a resettlement need to UNHCR Turkey.16 UNHCR is cognisant of resettlement states’ additional selection criteria and tries to take these criteria into account during the screening and submission of cases. Based on the dossiers UNHCR presents to resettlement states, national migration authorities make the final resettlement decision, sometimes after meeting people for in-person interviews. Thus, in practice, categories of UNHCR, resettlement states, the EU, and first countries of refuge interact in the complex admission process. Furthermore, frontline workers of the different actors involved have discretion in interpreting official categories. How categories translate into frontline decision-making for different EU countries lies beyond the scope of this chapter. Our document-based analysis instead offers a starting point for further research on categorisation and selection practices.

13 14 15

16

UNHCR, UNHCR Resettlement Handbook (Geneva: UNHCR, 2011), p. 3. Ibid. European Council, EU–Turkey Statement, 18 March 2016, available at www.consilium .europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/, last accessed 31 January 2019. UNHCR, Resettlement in Turkey, August 2018, available at www.unhcr.org/tr/wp-content/ uploads/sites/14/2018/09/07.-UNHCR-Turkey-Resettlement-Fact-Sheet-August-2018.pdf, last accessed 26 July 2019.

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.   ‘’



5.3 Categorising As ‘Othering’: Logics of Humanitarianism, Security, and Assimilability Generally speaking, categorising can be defined as ‘the grouping of objects that share a particular characteristic’.17 Applied to humans, categories ‘comprise sets whose members share the features with respect to which they are the same and different’, making a ‘category and its contents . . . internally undifferentiated’.18 Categorisations have to follow a certain logic, some kind of organising principle that allows one to label, order, and ascribe belonging. In discourses, laws and practices of migration governance categories serve to draw the line between an in-group and an out-group, a ‘we’ and a ‘them’. This form of ‘othering’ has to follow a certain logic of belonging, based on the question of ‘the same and different in relation to what?’, or in relation to whom?19 In resettlement and humanitarian admission, categorisations draw the boundaries of inclusion and exclusion to protection as well as establishing who may access the country of resettlement, its community, and its resources. Thus, categorisations in resettlement do not only determine who is in need of protection but also govern state borders and – in the long run – access to citizenship. Categorisations set the boundaries of inclusion for two questions: (1) who is most in need of protection and (2) who gets privileged access to the state’s territory, community, and resources? The first question addresses a humanitarian logic of ‘othering’ and focusses on the needs and security of the refugee. The second question is concerned rather with protecting the state’s security and the norms and values supposedly shared by its community. We can thus distinguish between humanitarian, security, and assimilability-based logics of ‘othering’ that underlie selection categories. Depending on which logic of ‘othering’ applies, constructions of ‘us’ and ‘them’ change. A humanitarian logic selects based on refugees’ needs and vulnerabilities. The ‘other’ is constructed as a victim and a person who is in need of ‘our’ protection. This allows the in-group to construct itself as a humanitarian saviour for those in need. We can understand humanitarianism as 17

18

19

D. Stone, Policy Paradox: The Art of Political Decision Making, 3rd ed. (New York: W. W. Norton & Co, 2012), p. 164. D. Yanow, Constructing ‘Race’ and ‘Ethnicity’ in America (New York: M. E. Sharpe, 2015), p. 11. D. Yanow and M. van der Haar, ‘People Out of Place: Allochthony and Autochthony in the Netherlands’ Identity Discourse – Metaphors and Categories in Action’ (2013) 16(2) Journal of International Relations and Development, 227–261.

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

 ‘’  ‘’

‘an array of particular embodied, situated practices emanating from the humanitarian desire to alleviate suffering of others’.20 Categorisations thus define whose suffering needs to be alleviated. Especially given a context of scarcity, this produces ‘implicit hierarchies’.21 As Fine notes: ‘a humanitarian rationality legitimates divisions between desirable and undesirable mobility, deserving and undeserving migrants’.22 A security logic selects based on the estimated or real threats that the ‘other’ poses to the in-group. The in-group’s physical and symbolic space is considered to be safe and secure; outsiders are considered to be a potential threat to this inner security. Political narratives which frame irregular migration as a threat to the EU as an ‘area of freedom, security and justice’ are illustrative for this reasoning.23 Inclusion and exclusion then works through a pre-emptive security logic. Those who are deemed not to be dangerous or ‘risky’ can then potentially become part of the in-group. An assimilability logic understands the ‘other’ as culturally different, and supposedly lacking the ‘shared values’ of liberal societies; values such as ‘fundamental rights, rule of law, openness, respect and tolerance towards other people’. The in-group constructs itself as a protector of these shared values, selecting those who are deemed to be ‘same enough’ to learn and practice these shared norms and values, e.g. by showing willingness to learn a country’s official language. This fusion of immigration and integration policies is no longer limited to the post-arrival phase. Whether someone shows ‘integration potential’ and is therefore ‘considered assimilable’24 may become a relevant criterion for access.25 Assimilability requires migrants to ‘earn’ their membership in the receiving society. As Kostakopolou states ‘what people think about nudism, 20

21

22

23

24

25

P. Redfield, ‘Doctors, Borders, and Life in Crisis’ (2005) 20(3) Cultural Anthropology, 328–361. D. Fassin, Humanitarian Reason: A Moral History of the Present Times (Berkeley: University of California Press, 2012). S. Fine, Borders and Mobility in Turkey (Cham: Springer International Publishing, 2018), p. 3. A. Niemann and N. Zaun, ‘EU Refugee Policies and Politics in Times of Crisis: Theoretical and Empirical Perspectives’ (2018) 56(1) JCMS: Journal of Common Market Studies, 3–22. S. Bonjour and J. W. Duyvendak, ‘The “Migrant with Poor Prospects”: Racialized Intersections of Class and Culture in Dutch Civic Integration Debates’ (2018) 41(5) Ethnic and Racial Studies, 882–900. C. Joppke, ‘Civic Integration in Western Europe: Three Debates’ (2017) 40(6) West European Politics, 1153–1176.

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.   ‘’



Table 5.1 Logics of ‘othering’ in categorisations for resettlement and humanitarian admission

Logic of Selection

Construction of ‘Them’ Construction of ‘Us’

Humanitarian

Security

Assimilability

Needs/ vulnerabilities: those who are vulnerable because their needs cannot be addressed in the first country of refuge Victim/In-need

Absence of threat: those deemed to be ‘not dangerous’ with regard to past and future life

Integration prospects: those deemed to be ‘same enough’ and willing to integrate into ‘our’ culture, values, etc.

Potential threat

Culturally different

Protector of European security and safety

Protector of ‘European’ identity and values and social cohesion

Saviour of those in need

same sex partnerships, religious conversion and so on seems to be crucial in determining who is to be included and excluded’.26 Table 5.1 summarises the three logics of ‘othering’ and the constructions of ‘us’ and ‘them’ they produce: In what follows, this chapter will examine how these different logics permeate official selection categories in European resettlement and humanitarian admission programmes. This is done after discussing UNHCR’s selection categories as an example of humanitarian ‘othering’.

5.3.1 Humanitarian ‘Othering’: UNHCR’s Submission Categories for Resettlement In the 1990s, a series of UNHCR documents specified the categories for resettlement. These document explicitly targeted ‘individual refugees

26

D. Kostakopoulou, ‘The Anatomy of Civic Integration’, in F. Anthias (ed.), Contesting Integration, Engendering Migration 2014 (London: Palgrave Macmillan, 2014), vol. 50, pp. 37–63.

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

 ‘’  ‘’

with special protection needs, including women at risk, minors, adolescents, elderly refugees, and survivors of torture’.27 In 1996, UNHCR published its first Resettlement Handbook, which has been updated twice since then.28 There is strong continuity regarding selection and exclusion categories throughout the three editions. In the handbook’s latest version, the seven resettlement submission categories are:29 1. 2. 3. 4.

Legal and/or physical needs; Survivors of torture and/or violence; Medical needs; Women and girls at risk, who have protection problems particular to their gender; 5. Family reunification, when resettlement is the only available solution; 6. Children and adolescents at risk; and 7. Lack of foreseeable alternative solutions. These selection categories serve as a point of departure in the design of most national programmes. The level of UNHCR involvement in the process and the concrete political context or ‘crisis’ the programmes respond to may impact the extent to which a resettling state embraces the UNCHR’s categories or redefines, prioritises, and replaces them. UNHCR’s categorisations for resettlement fit into what Glasman calls ‘Ordering through Needs’.30 Glasman describes that UNHCR started to embrace this approach in the 1980s and onwards, when ‘[p]eople were classified not only according to their legal status, but also according to their vulnerability’.31 All UNHCR resettlement categories are centred around individual or group-based vulnerabilities, and are independent from the perspective of states. Yet, their focus on refugees’ vulnerabilities does not make UNHCR resettlement categories neutral. Their underlying humanitarian logic clearly stratifies needs along gendered, agedifferentiated and bodily lines by considering women, children, families, and people with medical needs as per se more deserving than other groups. 27

28 29 30

31

Executive Committee of the High Commissioner Programme, ‘Conclusion on International Protection No. 85 (XLIX)’, (1998) contained in United Nations General Assembly Document No. 12A (A/53/12/Add.1). UNHCR, UNHCR Resettlement Handbook. Ibid., p. 45. J. Glasman, ‘Seeing Like a Refugee Agency : A Short History of UNHCR Classifications in Central Africa 1961–2015’ (2017) 30(2) Journal of Refugee Studies, 337–362. Ibid., p. 349.

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.   ‘’



UNHCR’s exclusion criteria are identical to the exclusion clauses of the Geneva Refugee Convention, specified in Articles 1D–1F.32 These articles define a set of categories that can lead to the exclusion of people from refugee status if there are ‘serious reasons for considering’ that the person committed war crimes, crimes against humanity, crimes against peace, a ‘serious non-political crime outside the country of refuge’,33 or is ‘guilty of acts contrary to the purposes and principles of the United Nations’.34 Thus the UNHCR resettlement categories also include some minimum standards for security-based exclusion from resettlement.

5.3.1.1 Selection Categories of European States, 2011–2016 European states follow UNHCR’s humanitarian categories, give special emphasis to certain categories, and define additional ones. EMN’s 2016 synthesis report provides insights into European states’ selection categories.35 National reports list the selection and prioritisation criteria the respective Member State applies in its selection process.36 Some country reports do not list any additional selection categories besides those of UNHCR (i.e. Italy, France) while other Member States’ reports comprise a variety of additional categories. The EMN questionnaire also asked for national categories to exclude or deprioritise resettlement candidates. While reports often use these terms interchangeably, deprioritising means that a case is not per se excluded from the process but is less likely to be submitted or selected. However, given the scarcity of resettlement capacities, deprioritisation will often result in the de facto exclusion of a case. The EMN national reports do not allow us to know how resettlement countries deliberated and decided on selection categories. Further, states may not report all the criteria they use in practice to determine refugees’ access, and the interpretations of selection categories may differ from 32

33 34 35

36

Convention Relating to the Status of Refugees, Geneva, 28 July 1951, in force 22 April 1954, 189 UNTS 137, Art. 1D–F. Ibid., Art. 1F (b). Ibid., Art. 1F (c). European Migration Network, Resettlement and Humanitarian Admission Programmes in Europe – What Works? (Brussels: European Migration Network, 2016). The selection categories applied by 14 Member States (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, The Netherlands, Norway, Slovakia, Spain, Sweden, United Kingdom) were taken from the country reports privided bt the EMN National Contact Points, see: https://ec.europa.eu/home-affairs/what-we-do/networks/european_ migration_network/reports_en, last accessed 28 January 2020.

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

 ‘’  ‘’

country to country. Despite these limitations, the panoramic view of European states’ selection categories allows us to illustrate the three logics of humanitarianism, security, and assimilability and examine the differences as well as the common patterns across Europe.

5.3.1.2 Humanitarian Logics of ‘Othering’ The EMN national reports indicate a strong commitment to offer protection to ‘the most vulnerable’37 or ‘particularly vulnerable’,38 which in theory would suggest a large overlap with UNHCR’s resettlement categories. Indeed, across all 21 programmes analysed, we observe that states underscore several UNHCR submission categories as their own selection categories. As UNCHR addresses its own categories in the screening and submission process, European states’ mentioning of one or several UNHCR categories’ can be understood as an additional emphasis or prioritisation.39 More specifically, this humanitarian logic can be observed in the programmes prioritising women, single mothers, or victims of genderbased violence (n=10), children (n=10), survivors of torture or violence (n=9) and medical cases (n=12).40 Where European states emphasise one of these UNHCR categories, programmes usually mention a combination of UNHCR categories. For instance, within the 14 programmes that prioritise either children or medical needs, 8 prioritise both. The programmes focussing on women and/or ‘survivors of violence and torture’ also prioritise medical cases. However, some states specify limitations. For instance, depending on the programme, Germany admits only three-to-five per cent of severe medical cases.41 Ireland asked UNHCR to prioritise medical cases that do not require life-time care and to suspend the submission of ‘serious childrelated medical cases’, like childhood cancer, for the next three years. Any medical need for which there are long waiting lists will not be 37

38

39 40 41

Italian EMN Contact Point, Resettlement and Humanitarian Admission Programmes in Europe – What Works? Country Report Italy (Luxembourg: University of Luxembourg, 2016), p. 35. J. Grote, M. Bitterwolf and T. Baraulina, Resettlement and Humanitarian Admission Programmes in Germany: Focus-Study by the German National Contact Point for the European Migration Network (EMN), (Nürnberg: Bundesamt für Migration und Flüchtlinge Working Paper, 2016), p. 6. See Table 5.1. ‘n’ indicates the number of programmes. Grote et al., Resettlement and Humanitarian Admission Programmes in Germany.

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.   ‘’



accepted.42 Luxembourg excludes refugees with untreatable diseases or disabilities, and those requiring organ transplantation.43 For many countries that did not make sub-quotas or specific limitations explicit in their reports, they often exist in practice as informal agreements between the resettlement country and UNHCR.44 Rather than being a limitation to humanitarian-based selection, these examples point to the material limitations of refugee reception that resettlement states have in their programmes such as specialised clinics or adequate housing. Children are explicitly prioritised in a number of programmes. However, there are some important limitations, especially regarding family size and unaccompanied minors. For instance, families with more than three children are less likely to be resettled to Luxembourg.45 While Sweden accepts to resettle unaccompanied children,46 other Member States prefer not to focus on this group for reasons of often complex child custody issues and challenging reception in the resettlement country. Table 5.2 summarises the programmes:47

5.3.1.3 Security Logics of ‘Othering’ Security logics are concerned with the question of national security and aim at keeping the supposedly ‘dangerous other’ out. The baseline for refugees’ exclusion on security grounds is Article 1F of the Geneva Refugee Convention.48 This article, either rephrased or in its exact wording, is part of all European programmes. Moreover, Member States are at liberty to apply additional security criteria should they deem them necessary. 42

43

44

45

46

47

48

S. Arnold and E. Quinn, Resettlement of Refugees and Private Sponsorship in Ireland (Dublin: ESRI Research Series, 2016). Luxembourg EMN Contact Point, Resettlement and Humanitarian Admission Programmes in Europe – What Works? (Luxembourg: University of Luxembourg, 2016), pp. 15, 27. This information draws on one of the author’s fieldwork in Lebanon and Turkey between March 2018 and November 2018, including observations at UNHCR Turkey, and interviews with UNHCR high-level and front-line officers. Luxembourg EMN Contact Point, Resettlement and Humanitarian Admission Programmes in Europe – What Works?, p. 8. Swedish EMN Contact Point, Resettlement and Humanitarian Admission Programmes in Europe – What Works? Country Report Sweden, (Norrköping: Migrationsverket, 2016), p. 27. Information was gathered from the National Contact Points reports available at https://ec .europa.eu/home-affairs/what-we-do/networks/european_migration_network/reports_en, last accessed 30 July 2019. Convention Relating to the Status of Refugees, Geneva, Art. 1F.

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Humanitarian logics Programmes



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Table 5.2 Summary of programmes and reported categories with humanitarian logics of ‘othering’

AT BE CZ DE_RST DE_HAP ES FI FR_1 FR_2 FR_3_EU_TUR IE IT LU_1 LU_2 NL NO SE SK

Women, mothers, victims of gender violence

Elderly

yes

yes

Children

Survivors of violence and torture, or at risk

Medical needs

yes

yes

Protracted cases yes

yes yes

yes yes

yes

yes

yes yes yes

yes

yes

yes

yes

yes

yes

yes

yes yes

yes yes yes yes

yes yes yes yes

yes yes

yes yes yes yes

yes

yes yes yes

yes yes yes

yes yes

yes yes

Abbreviations: AT, Austria; BE, Belgium; CZ, Czech Republic; DE_RST, Refugee resettlement programme [Germany]; DE_HAP, Humanitarian Admission Programme for Syrians [Germany]; ES, Spain; FI, Finland; FR_1, Framework resettlement programme with UNHCR [France]; FR_2, Refugee resettlemet programme for Syrians and Palestinians [France]; FR_3_EU_TUR, Refugee resettlement programme following EU–Turkey agreement of 18 March 2016 [France]; IE, Ireland; IT, Italy; LU_1, Ad-hoc refugee resettlement programme for Syrians [Luxembourg]; LU_2, Refugee resettlement programme for Syrians from Jordan following EU–Turkey agreement of 18 March 2016 [Luxembourg]; NL, the Netherlands; NO, Norway; SE, Sweden; SK, Slovakia; UK_syr; United Kingdom Syrian Vulnerable Person’s Resettlement Scheme (VPRS); UK_gpp, United Kingdom Gateway Protection Programme (GPP); UK_mrs, United Kingdom Mandate Refugee resettlement Scheme (MRS).



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UK_syr UK_gpp UK_mrs



 ‘’  ‘’

In the reports analysed, the Austrian programme for Syrian refugees residing in Jordan had the most additional exclusion categories. Specifically, refugees would be excluded for: using false identification, having a criminal record, a history of irregular entry to Austria, and those who returned to Syria after getting refugee status in Jordan. Germany, the UK, and Norway also consider a criminal record as a reason for exclusion.49 While only Austria and Norway explicitly state that holding false identification is grounds for exclusion, in practice all resettlement countries require some proof of identity. Although EU Member States rarely make it explicit, the prioritisation of women (n=10), children (n=10), and families (n=7) results in a de-facto deprioritsation of single, heterosexual, able-bodied men. While women and children are considered to be ‘authentic’ refugees, refugee men without family are seen as potential security threats. Depending on the country and programme, the only exceptions are cases of LGBTQI, severe medical needs, or victims of violence and torture.50 In its EMN report Ireland, for instance, justifies the deprioritisation of single male applicants by claiming that it would be ‘harder to integrate them in the community’.51 Yet, statistically speaking refugee men have higher employment rates than female refugees.52 This suggests that the supposed integration obstacle relates rather to security and assimilability concerns. In line with mainstream representations of refugee men,53 there seems to be a concern that single refugee men will remain the ‘unassimilable other’, refusing liberal democratic values, and potentially radicalising.

5.3.2 Assimilability Logics of ‘Othering’ An assimilability logic of ‘othering’ prioritises those who presumably share the receiving society’s ‘common values’ and know the language.

49 50

51 52

53

Compare Table 5.2. L. Turner, ‘Who Will Resettle Single Syrian Men?’ (2017) 54(1) Forced Migration Review, 29–31. Arnold and Quinn, Resettlement of Refugees and Private Sponsorship in Ireland, p. 44. J. Perschner, Labour Market Performance of Refugees in the EU (Brussels: European Commission, 2017), pp. 15–16. E. Olivius, ‘Refugee Men As Perpetrators, Allies or Troublemakers? Emerging Discourses on Men and Masculinities in Humanitarian Aid’ (2016) 56(1) Women’s Studies International Forum, 56-65; J. W. Rettberg and R. Gajjala ‘Terrorists or Cowards: Negative Portrayals of Male Syrian Refugees in Social Media’ (2016) 16(2) Feminist Media Studies, 178–181.

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Clear Security logic

Programmes54



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Table 5.3 Summary of programmes and categories with security logics of ‘othering'

AT BE CZ DE_RST DE_HAP ES FI FR_1 FR_2 FR_3_EU_TUR IE IT LU_1 LU_2 NL NO SE

Drug or other substance abuse

Other

False ID

Criminal record

Irregular entry

yes

yes

yes

yes yes

Prioritisation of family

Explicit deprioritisation of single men (except LGBTQI)

yes yes yes

yes

yes

yes yes yes

yes

yes

yes

yes

Clear Security logic

Programmes54 SK UK_syr UK_gpp UK_mrs



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Table 5.3 (cont.)

Drug or other substance abuse

False ID

Criminal record

Other Irregular entry

Prioritisation of family

Explicit deprioritisation of single men (except LGBTQI)

yes

Abbreviations: AT, Austria; BE, Belgium; CZ, Czech Republic; DE_RST, Refugee resettlement programme [Germany]; DE_HAP, Humanitarian Admission Programme for Syrians [Germany]; ES, Spain; FI, Finland; FR_1, Framework resettlement programme with UNHCR [France]; FR_2, Refugee resettlemet programme for Syrians and Palestinians [France]; FR_3_EU_TUR, Refugee resettlement programme following EU–Turkey agreement of 18 March 2016 [France]; IE, Ireland; IT, Italy; LU_1, Ad-hoc refugee resettlement programme for Syrians [Luxembourg]; LU_2, Refugee resettlement programme for Syrians from Jordan following EU–Turkey agreement of 18 March 2016 [Luxembourg]; NL, the Netherlands; NO, Norway; SE, Sweden; SK, Slovakia; UK_syr; United Kingdom Syrian Vulnerable Person’s Resettlement Scheme (VPRS); UK_gpp, United Kingdom Gateway Protection Programme (GPP); UK_mrs, United Kingdom Mandate Refugee resettlement Scheme (MRS).

.   ‘’



In total, 11 programmes have inclusion categories that reflect this kind of rationale.55 Some policies explicitly state ‘integration potential’ or a ‘willingness to integrate’.56 Others do this indirectly by making ‘knowledge of the language’ or ‘ties to the country’ an inclusion category.57 Resettlement countries sometimes use interviews as part of the admission procedures (e.g. Luxembourg and the Netherlands) to evaluate the ‘integration potential’ of candidates. Luxembourg’s report describes the procedure as follows: During the face-to-face interviews, the pre-selected candidates are informed on their future life in Luxembourg, the school system, (non-) religious practices, ‘common values’, the Luxembourgish language regime, the labour market, and a cultural orientation workshop or introduction is provided to them. It may occur that following these interviews one of the parties considers that a resettlement would not be in either party’s interest.58

States’ selection interviews remain one of the most opaque parts of the selection process, and the practices of evaluation refugees’ ‘integration potential’ vary. Yet, some examples that state representatives refer to are: the question whether a father would let his children participate in mixed swimming classes at school or an interviewees’ reaction to two men kissing on the street. As these examples show, assimilability-based selection mobilises gender and sexuality norms to draw boundaries of inclusion and exclusion. Refugee selection then operates similar to civic integration policies that see immigrant groups as potential threats to liberal societies and values.59 54

55 56

57 58

59

Information was gathered from the National Contact Points reports available at https://ec .europa.eu/home-affairs/what-we-do/networks/european_migration_network/reports_ en, last accessed 30 July 2019. Compare Table 5.3. M. Besters and D. Diepenhorst, Hervestiging en Humanitaire Toelating in Nederland: Beleid en praktijk (The Hague: EMN Nederland, 2016), p. 26. Grote et al., Resettlement and Humanitarian Admission Programmes in Germany, p. 25. Luxembourg EMN Contact Point, Resettlement and Humanitarian Admission Programmes in Europe – What Works?, p. 29. S. Thapar-Björkert and K. Borevi, ‘Gender and the “Integrationist Turn” – Comparative Perspectives on Marriage Migration in the UK and Sweden’ (2014) 17(2) Tijdschrift voor Genderstudies, 149–165; A. Korteweg and G. Yurdakul, ‘Islam, Gender, and Immigrant Integration: Boundary Drawing in Discourses on Honour Killing in the Netherlands and Germany’ (2009) 32(2) Ethnic and Racial Studies, 218–238; S. Bonjour, ‘Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad’ (2010) 12(3) European Journal of Migration and Law, 299–318.

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

 ‘’  ‘’

The explicit prioritisation of skills or high education level in five European programmes suggests that refugees are selected based on their labour market prospects.60 Such criteria are a way to choose those who are likely to contribute to the welfare state over those who are assumed to become a ‘burden’. The Netherlands asks UNHCR to propose refugee profiles with academic education but also journalists, human rights activists, or other people who played an active role in civil society.61 Yet, especially in humanitarian admission programmes, such prioritising of specific skills addresses both an assimilability as well as a humanitarian logic. People with certain professions are considered to integrate well in the receiving society and to be key in the post-war reconstruction of the country of origin. Germany, in its humanitarian admission programmes for Syrian refugees from Lebanon in 2013–2015 for instance, specified that refugees with ‘skills for reconstructing Syria after the end of the conflict’62 would be prioritised. Official selection categories such as ‘knowledge of the language’ or ‘family ties in the host country’ are considered as indicators for faster integration into society and the labour market. At the same time, family links and factors that facilitate refugees’ self-reliance in the resettlement country are also considered to be in the refugees’ interest and hence reconcilable with a humanitarian logic. In some countries, the prioritisation of religious or ethnic minorities (n=5) has been criticised as an implicit assimilability logic. For instance, a representative of the Red Cross commented on Austria’s announcement to primarily admit ‘children, women, Christians from Syria’ with the provocative question ‘Do Christians suffer more from poison gas?’63 Germany, too, initially declared to focus on Christian minorities in its humanitarian admission programme for Syrian refugees in Lebanon. In light of the criticism of this statement, both within Germany and in Lebanon, the official policy reformulated the criterion as ‘members of religious minorities, if they are religiously-persecuted’.64 For the actual

60 61 62

63

64

Compare Table 5.3. Besters and Diepenhorst, Hervestiging en Humanitaire Toelating in Nederland, p. 18. Bundesministerium des Innern, Anordnung des Bundesministeriums des Innern gemäß § 23 Absatz 2, Absatz 3 i. V. m. § 24 Aufenthaltsgesetz zur vorübergehenden Aufnahme von Schutzbedürftigten aus Syrien und Anrainerstaaten Syriens vom 30. Mai 2013 (2013). M. Santner, ‘Leiden Christen mehr unter Giftgas?’ (Berlin: Rotes Kreuz, 2 September 2013), available at www.roteskreuz.at/news/datum/2013/09/02/leiden-christen-mehrunter-giftgas/, last accessed 26 July 2019. Bundesministerium des Innern, Anordnung des Bundesministeriums des Innern gemäß § 23 Absatz 2, Absatz 3 i. V. m. § 24 Aufenthaltsgesetz zur vorübergehenden Aufnahme von Schutzbedürftigten aus Syrien und Anrainerstaaten Syriens vom 30. Mai 2013 (2013).

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.      



selection of refugees from Lebanon, Germany together with UNHCR and Lebanese authorities tried to maintain a balance of accepting different religious sects.65 Germany’s example shows that the sheer presence of religion or ethnicity-based selection criteria is not necessarily indicative of an assimilability logic, and practice, of ‘othering’. Table 5.4 summarises the programmes.66

5.4 Harmonising Selection Categories in the EU: Combining Humanitarian, Security, and Assimilability Logics The renewed interest of many European Member States in resettlement and humanitarian admission programmes has been coupled with EU efforts to harmonise selection priorities and incentivise Member States to increase their quotas. Two ad hoc programmes in 2015 and 2017 consolidated individual Member States’ admission efforts and presented resettlement as a European instrument. While emphasising the voluntary and additional nature of such programmes, the ad hoc programmes were a first attempt to steer Member States’ selection through the EU’s priority categories under the Asylum, Migration and Integration Fund (AMIF).67 In 2015 and in response to the so-called European migration crisis, the EU expressed its interest in incorporating resettlement and humanitarian admission programmes more systematically into its migration management approach One example of this is the 2015 Agenda on Migration.68 An important step in this regard was the EU–Turkey deal offering inter alia refugee admissions from Turkey and financial assistance in exchange of stricter border controls and cooperation on return.69 Although still 65

66

67

68

69

This information is based on one of the author’s research on the German programmes, including semi-structured interviews with UNCHR and German state representatives. Information was gathered from the National Contact Points reports available at https://ec .europa.eu/home-affairs/what-we-do/networks/european_migration_network/reports_en, last accessed 30 July 2019. Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (2014), OJ L 150, 20 May 2014, pp. 168–194. European Commission, A European Agenda on Migration. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM/2015/0240 final (2015). European Council, EU-Turkey Statement (18 March 2016), available at www.consilium .europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/, last accessed 31 January 2019.

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

 ‘’  ‘’

Table 5.4 Summary of programmes mentioning assimilability logics Assimilability logic Programmes AT BE CZ DE_RST DE_HAP ES FI FR_1 FR_2 FR_3_EU_TUR IE IT LU_1 LU_2 NL NO SE SK UK_syr UK_gpp UK_mrs

Professional

yes yes yes

yes yes

Ambivalent assimilability logic

Cultural

Religious or ethnic minority

yes

yes

yes yes yes yes yes

yes

yes yes yes yes

yes yes

yes

yes

Abbreviations: AT, Austria; BE, Belgium; CZ, Czech Republic; DE_RST, Refugee resettlement programme [Germany]; DE_HAP, Humanitarian Admission Programme for Syrians [Germany]; ES, Spain; FI, Finland; FR_1, Framework resettlement programme with UNHCR [France]; FR_2, Refugee resettlemet programme for Syrians and Palestinians [France]; FR_3_EU_TUR, Refugee resettlement programme following EU–Turkey agreement of 18 March 2016 [France]; IE, Ireland; IT, Italy; LU_1, Ad-hoc refugee resettlement programme for Syrians [Luxembourg]; LU_2, Refugee resettlement programme for Syrians from Jordan following EU–Turkey agreement of 18 March 2016 [Luxembourg]; NL, the Netherlands; NO, Norway; SE, Sweden; SK, Slovakia; UK_syr; United Kingdom Syrian Vulnerable Person’s Resettlement Scheme (VPRS); UK_gpp, United Kingdom Gateway Protection Programme (GPP); UK_mrs, United Kingdom Mandate Refugee resettlement Scheme (MRS).

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.      



under negotiation, there is a proposal for a common European framework which would constitute the most extensive EU effort to harmonise selection categories.70 In examining the EU’s efforts to harmonise Member States’ selection priorities, we see that propositions for selection categories go beyond UNHCR resettlement categories and combine humanitarian, security, and assimilability logics. In the 2016 proposal for a Union Resettlement Framework, the coexistence of these logics becomes most visible. Proposed eligibility criteria largely paraphrase UNHCR’s resettlement submission categories and, in addition, define which family members are eligible for resettlement.71 The focus on ‘vulnerable persons’ and families clearly displays a humanitarian logic of inclusion. However, the definitions of which family members are eligible follow European norms of what constitutes a family. This has been heavily criticised for its potential overlap with family reunification policies.72 Article 6 on ‘Grounds for Exclusion’ of the proposal for Union Resettlement Framework has a strong emphasis on, and more detailed definition of, security logics. Besides the exclusion grounds of Article 1F of the Geneva Convention73 and a generic security clause, there are a number of additional exclusion grounds. For instance, persons who have entered or tried to enter the EU irregularly, and those whom Member States have refused resettlement five years prior, should be excluded. Article 10 makes the assimilability logic of the proposal visible. It suggests that in their selection Member States ‘may give preference inter alia to . . . persons [sic]’ with family links in one of the EU Member States, or ‘social or cultural links, or other characteristics that can facilitate integration in the participating Member State’. As a ‘may’-clause, these assimilability-based selection priorities do not receive the same weight in comparison to security criteria, which ‘shall’ apply. However, as Bamberg notes, if the proposal’s formulation regarding a person’s ‘integration potential’ makes it through the frameworks’ ongoing negotiation process, ‘it would be the first time that the EU would be in a position to condition the access to protection, in this case through resettlement, on integration potential’.74 70

71 72

73 74

Proposal for a regulation of the European Parliament and the Council establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council: COM/2016/0468 final – 2016/0225 (COD). Ibid., Art. 5. K. Bamberg, The EU Resettlement Framework: From a Humanitarian Pathway to a Migration Management Tool? (Brussels: EPC Discussion Paper, 26 June 2018), p. 7. Compare Convention Relating to the Status of Refugees, Geneva, Art. 1D–F. Bamberg, The EU Resettlement Framework, p. 8.

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

 ‘’  ‘’

5.5 Conclusion In this chapter, it was investigated how European states select the privileged few who can safely and legally get protection via resettlement and humanitarian admission programmes. This is done against the background where current efforts are being heavily invested into preventing people from arriving on European territory. By theorising resettlement and humanitarian admission as a combination of humanitarian relief and migration control, it was argued that categorisations and ‘othering’ do not only control access to protection, but also territorial access to the nation state, its community, and resources. ‘Othering’ draws the boundaries between ‘us’ and ‘them’ along humanitarian, security, and assimilability logics. How these logics intersect determines the combination of selection categories and thereby the boundaries of access. Besides some minimal security consideration, UNHCR promotes a purely humanitarian set of categories. In contrast, European states and the EU have a number of additional selection priorities, ‘othering’ along

Figure 5.1 Three logics of ‘othering’ in resettlement and humanitarian admission programmes, 2011–2016

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. 



security and assimilability logics. As illustrated in Figure 5.1,75 humanitarian, security, and assimilability logics of ‘othering’ often co-exist in European national programmes. Six programmes combine humanitarian and assimilability logics, The Netherlands’, Czech Republic’s, Finland’s, one from the UK, and both of Luxembourg’s programmes, and four programmes encompass all three logics in their selection categories, Austria, Norway, and both of Germany’s programmes. The overlap of these three logics suggests that access does not only depend on refugees’ vulnerabilities and protection needs, but also on their estimated assimilability and security profile. In practice, this combination seems to privilege families, refugee women, and children, along with those with valid documents, no criminal record, and ‘potential’ or ‘willingness’ to integrate as the ‘ideal other’ for resettlement. Yet, our analysis also shows how categories may address multiple selection logics at the same time or have context-specific meanings. Examining the situated meanings of selection categories in policy formulation and selection practice promises to be a fruitful avenue for future research. The EU harmonisation efforts seek to establish the triple logic of ‘othering’ for refugee selection we observed in 4 out of 21 national European programmes for all European programmes. The proposal for a Union Resettlement Framework refers to UNHCR’s selection categories but also includes a number of security- and assimilability-related categories, with a stronger emphasis seemingly on the former. It remains to be seen how the current trends in resettlement categories develop and, thereby, how the boundaries of privileged access to protection evolve to either include or exclude vulnerable individuals.

75

Numbers denote the number of programmes, which explicitly mention additional selection and prioritisation criteria. Humanitarian logic includes: women, children, mothers, victims of violence and torture, medical cases and protracted cases; assimilability logic: linguistic, cultural, skill-based selection; security includes additional emphasis beyond the UNHCR exclusion criteria on: persons with criminal record, drug abuse, false documents, irregular stay.

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PART II The Operation of Legal ‘Othering’ and the National–Foreigner Dichotomy in the EU

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6 The Rights of ‘Others’ in Domestic Constitutions Towards an Equality-Based Approach?

í 

6.1

Introduction

This chapter examines the legal ‘othering’ of non-citizens in national constitutional law, primarily through an analysis of recent Irish jurisprudence which, it is argued, effectively collapses the distinction between citizen and non-citizen as rights bearers in the Irish constitutional order. As Jesse notes in Chapter 2, the non-citizen is, legally speaking, automatically the ‘other’ within the framework of the nation-state.1 Thus, while European Union (EU) Law and the European Convention on Human Rights (ECHR) have an ever-increasing influence on the regulation of migration and migrants’ daily lives in EU Member States, domestic constitutional law continues to affect the ‘othering’ of immigrant groups in important ways. One of these is the constitutional treatment of noncitizens – in particular, the extent to which non-citizens are considered to be rights-bearers under national constitutional law. The extension of core rights to non-citizens represents a fundamental form of integration in the constitutional system;2 and the shared entitlement of citizens and immigrants to such rights constitutes a basic form of equality which is essential to an equality-based paradigm of integration or inclusion.3 From a practical perspective, the protection of migrants’ rights to education, healthcare, and employment is a pre-requisite to social inclusion.4 1 2

3

4

See Section 2.2 by Jesse. Alistair Ager and Alison Strang, ‘Understanding Integration: A Conceptual Framework’ (2008) 21(2) Journal of Refugee Studies, 176. Donald Kerwin, ‘Immigrant Rights, Integration and the Common Good’, in Michael Fix (ed.), Securing the Future, US Immigrant Integration Policy, A Reader (Washington, DC: Migration Policy Institute, 2006), p. 47. EU Fundamental Rights Agency, ‘Together in the EU: Promoting the Participation of Migrants and Their Descendants’ (EUFRA, 2017), pp. 7–13.



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

  ‘’   

This chapter explores these issues by reference to the Irish experience, and outlines the approach of the Irish courts to the scope of the rights of non-citizens under the Constitution of 1937. The Irish example is an interesting one for a number of reasons. Ireland has a well-developed constitutional rights jurisprudence and a robust system of judicial review of legislation.5 It is a member of the EU, but is not bound by EU rules in most areas of immigration and asylum law as it has not opted in to many of EU instruments in these fields.6 Constitutional law is now influenced by the ECHR, which was incorporated into Irish law at a subconstitutional level in 2003.7 Finally, as Ireland is a relatively recent country of immigration, the issue of the scope of constitutional protection of rights of non-citizens is still ‘live’, with the Irish Supreme Court engaged in the thorny philosophical, legal, and ethical questions involved on an ongoing basis. The analysis will show that the jurisprudence on the constitutional rights of non-citizens in Ireland has been somewhat incoherent. However, in a landmark judgement in 2017, the Supreme Court found that the threshold question of whether a particular constitutional right extends to non-citizens in principle should be answered by assessing whether that right ‘goes to the essence of human personality’.8 If it is, according to the unanimous decision of the Court, it would be contrary to the constitutional guarantee of equality among human persons to withhold that right from non-citizens completely. This approach, expressly based on the universalist values of human dignity and equality,9 effectively collapses the constitutional distinction between citizen and non-citizen for the purposes of rights protection. It is argued here that this reasoning provides a model for an inclusive approach to rights protection at the national level. Before engaging in an analysis of the case-law, the chapter will set the scene by first discussing the ways in

5

6

7

8 9

For the authoritative text on Irish constitutional law, see Gerard Hogan, Gerry Whyte, David Kenny, and Rachael Walsh, Kelly: The Irish Constitution, 5th ed. (London: Bloomsbury, 2018). See explanatory table in EU Fundamental Rights Agency, Handbook on European Law Relating to Asylum, Borders and Immigration (Belgium: EUFRA, 2014), p. 262. European Convention on Human Rights Act 2003. See generally, Suzanne Egan, Liam Thornton, and Judy Walsh, Ireland and the European Convention on Human Rights: 60 Years and Beyond (London: Bloomsbury, 2014). NHV v. Minister for Justice and Equality [2017] IESC 35, para. 13. Dáire McCormack-George, ‘Asylum Seekers and the Right to Work in Irish Law: NVH v. Minister for Justice and Equality’ (2019) 61(1) Irish Jurist, 174.

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.   



which constitutions are expressions of national identity, and then considering the Catholic, nationalist, and liberal-democratic foundations of the Irish Constitution.

6.2 Constitutions As Expressions of National Identity: A Textual Analysis of the Irish Constitution As well as the primary function of constitutions in laying down the modes of governmental operation and the fundamental rights of citizens, constitutions also act as a covenant, symbol, and aspiration.10 Habermas has observed that constitutional discourse enables the participants to clarify the way that they want to understand themselves as citizens of a specific republic, as inhabitants of a specific region, as heirs to a specific culture, which traditions they want to perpetuate and which they want to discontinue, how they want to deal with their history, with one another and so on.11 Thus, for example, Article 1 of the French Constitution of 1958 enshrines the fundamental principles of the French Republic, including laicité and equality before the law. In the same vein, the Turkish Constitution of 1982 in Article 2 declares the secular nature of the Turkish Republic, and the ‘multicultural’ foundations of Canada are acknowledged in Article 27 of the Canadian Charter of Rights and Freedoms. Article 1 of the German Basic Law (1949) expressly constitutionalises respect for human dignity, as do at least 14 other European constitutions.12 The legacy of apartheid is clear in the South African Constitution of 1996, which includes in Article 1 the values of ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’ and ‘non-racialism and non-sexism’ among the founding values of the state. In relation to the Constitution of Ireland 1937 (‘Bunreacht na hÉireann’), the Irish Supreme Court has stated that it ‘expresses not only legal 10

11

12

See Walter F. Murphy, ‘Constitutions, Constitutionalism and Democracy’, in Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley (eds.), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford: Oxford University Press, 1993), p. 3. Jurgen Habermas, ‘The European Nation State: Its Achievements and Its Limitations: On the Past and Future of Sovereignty and Citizenship’ (1996) 9(2) Ratio Juris, p. 125. See Conor O’Mahony, ‘There Is No Such Thing As a Right to Dignity’ (2012) 10(2) International Journal of Constitutional Law, 551–574, citing Catherine Dupré, ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity’ (2006) 6(3) European Human Rights Law Review, 678, 687.

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  ‘’   

norms but basic doctrines of political and social theory’ and ‘reflects, in part, [the people’s] aspirations and aims’.13 Bunreacht na hÉireann is clearly ‘conceived in part as a manifesto rather than a bare law’.14 This is evident in the rhetorical flourishes and religious language contained throughout the Constitution, along with the aspirations contained in the preamble, the provisions on the family, education, religion and the ‘directive principles of social policy’. Other Constitutions of the mid-twentieth century are similar in style to the 1937 Constitution, including the Italian Constitution of 1947, which is also influenced by Catholic teaching, and the Constitution of India of 1950, which drew inspiration from the Irish example.15 In immigrant-receiving countries, the permeation of ethics throughout the constitutional order can have a significant impact on migrants – especially those seeking to naturalise as citizens, who may be required to prove knowledge of and/or adherence to these values through language, integration, or societal knowledge tests.16 The expression of the legal and political identity of states contained in constitutions also has a demonstrable impact on constitutional adjudication.17 In the Irish context, the Catholic ethos of the State, as reflected in the Constitution, shaped the contours of early Irish constitutional jurisprudence in particular.18 The following sections consider the Roman Catholic, nationalist, and liberal democratic influences on the 1937 Constitution.

6.2.1 A Catholic Constitution It is well-established that the 1937 Constitution is strongly influenced by Judaeo-Christian thinking and in places endorses a specifically Roman Catholic ideology.19 The first line of the preamble states that the Constitution is declared: ‘In the Name of the Most Holy Trinity, from Whom is 13 14

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17 18

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The Criminal Law (Jurisdiction) Bill, 1975 [1977] IR 129, at 147 (per O’Higgins J). John M. Kelly, ‘The Constitution: Law and Manifesto’, in Frank Litton (ed.), The Constitution of Ireland 1937–1987 (Dublin: IPA, 1987), pp. 208–209. Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution, 3rd ed. (Oxford: Butterworths, 2003), pp. 2078–2079. See also Gerard Hogan, ‘De Valera, the Constitution and the Historians’ (2005) 40 The Irish Jurist, 291. See generally, Moritz Jesse, The Civic Citizens of Europe: The Legal Potential for Immigrant Integration in the EU, Belgium, and the United Kingdom (Leiden: Brill, 2017). George Fletcher, ‘Constitutional Identity’ (1992–1993) 14(2) Cardozo Law Review, 737. See generally, Eoin Daly, ‘Religion as Public Good and Private Choice in Irish Constitutional Doctrine’ (2016) 56 Irish Jurist, 103. Dermot Keogh and Andrew McCarthy, The Making of the Irish Constitution 1937 (Cork: Mercier Press, 2007), in particular at chapters 3 and 4.

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.   

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all authority and to Whom, as our final end, all actions both of men and States must be referred’. The family unit is given specific protection in Article 41, which also ‘recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved’.20 The religious freedom provision states in its opening paragraph that ‘the homage of public worship is due to Almighty God’ and that the State ‘shall hold His Name in reverence, and shall respect and honour religion’ (Article 44). The articles on private property (Article 43) and the directive principles of social policy (Article 45) reflect Catholic teaching of the 1930s.21 At various points in time since 1937, the Constitution has contained a provision acknowledging the ‘special position’ of the Catholic Church in Irish society22 and specific prohibitions on abortion23 and divorce.24 Criticisms of the Catholic underpinnings of the Constitution have been based on an evolving series of concerns related to the political and legal concerns of the day. Early concerns were linked to the conflict in Northern Ireland and the worry that Ireland would effectively become a sectarian state. Following the signing of the Belfast Good Friday Agreement, the principal argument against this dimension of the Constitution has been that the emphasis on Catholic social principles is increasingly at odds with the social reality in the country given the sharp trend towards secularisation of Irish society.25 Most recently, fresh challenges are posed by the new diversity of religious and non-religious belief and custom which has been brought about through immigration. Ireland is now an immigrant-receiving society, with a long-established immigrant population. The census of 2016 shows that 17.3 per cent of the resident population of Ireland was born outside the country.26 This is the fourth highest proportion of foreign-born residents in the EU, following 20 21

22 23

24

25

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Art. 41.2. For commentary, see Thomas Murray, ‘Socio-Economic Rights and the Making of the 1937 Irish Constitution’ (2016) 31(4) Irish Political Studies, p. 504. Art. 41.1.2 and 41.1.3, removed by the Fifth Amendment of the Constitution Act 1972. Art. 40.3.3, inserted by the Eighth Amendment of the Constitution Act 1983 and removed by the Thirty-Sixth Amendment of the Constitution Act 2018. The prohibition was contained in Art. 41.3.2º of the Constitution, which was removed by the Fifteenth Amendment of the Constitution Act 1995. See for example Gerry Whyte, ‘Some Reflections on the Role of Religion in the Constitutional Order’, in T. Murphy and P. Twomey (eds.), Ireland’s Evolving Constitution: 1937–1997 (Oxford: Hart, 1999), p. 52. Census 2016 Summary Results – Part 1 (Table EY020). Available online at www.cso.ie/ en/csolatestnews/presspages/2017/census2016summaryresults-part1/, last accessed 20 October 2017.

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  ‘’   

Luxembourg (45.2%), Cyprus (20.4%), and Austria (18.2%).27 In this context, the question becomes whether the role of religion in the Constitution renders integration into the constitutional fabric of Irish society unattainable for those who do not hail from this tradition. At the very least, the close association envisaged by some provisions of the Constitution and Catholicism could have an exclusionary effect for those with a different cultural heritage.28

6.2.2 A Nationalist Constitution Barrington J, in McGimpsey v. Ireland, commented that ‘One thing that can be said about the Constitution is that it is a nationalist constitution.’29 This dimension to the 1937 Constitution is rooted in the specific historical context in which it was drafted: a central aim of the architects of the Constitution was to express a national identity which was ‘not English’.30 The original understanding of the Irish Nation in the 1937 text identified that nation with those people on the island whose forefathers struggled to regain the rightful independence of the Nation (the preamble), who themselves aspired to territorial unity (Article 3) and whose cultural heritage embraced the Irish language and the tricolour (Articles 7 and 8). The Irish Nation is defined with reference to its struggle for independence, an identity closely linked to the particular geographic entity that is the island of Ireland. Controversially, this version of nationalism also asserted the right of the Irish nation to territorial unity.31 In spite of the removal of the territorial claim to Northern Ireland by the 1998 amendment following the Good Friday Agreement, the amended articles continue to reflect a (toned-down) nationalist philosophy. Article 3 affirms the ‘firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of

27

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Eurostat 2017, Migration and migration population statistics (March 2017). Available online at http://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_ migrant_population_statistics#Migrant_population, accessed 20 October 2017. Whyte, ‘Some Reflections on the Role of Religion in the Constitutional Order’, p. 52. McGimpsey v. Ireland [1988] IR 567, at 583, per Barrington J. For a detailed consideration of this topic, see Desmond Clarke, ‘Constitutional Bootstrapping: The Irish Nation’ (2000) 18 Irish Law Times, 74–77. Oran Doyle, The Constitution of Ireland: A Contextual Analysis (Oxford: Hart Publishing, 2018), p. 62. See also Declan Kiberd, Inventing Ireland: The Literature of a Modern Nation (New York: Random House, 1995), p. 9. Art. 2. Hogan et al., Kelly: The Irish Constitution, 5th ed., p. 72.

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the island of Ireland, in all the diversity of their identities and traditions’, even though it is expressly stated that this aspiration to unity can only be achieved by peaceful means.32 Citizens of Ireland are also part of the Irish Nation, with Article 2 stating that ‘It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation’, and ‘That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.’ In addition, the other elements of the identity of the Nation – the Irish language as the first official language of the State (Article 7) and the tricolor (Article 8) – remain intact today. Reflecting the country’s experience of emigration, the third sentence of Article 2 states that ‘Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.’ This conception of the Nation is ethno-cultural in nature, reveals a gap between members of the ‘Nation’ and ‘citizens’, and suggests that the bonds between members of the Irish Nation are based on a shared common past rather than a shared social space. The essentialism claimed by nationalism is especially problematic in the context of Ireland as an immigrant-receiving country.33 On the basis of this, it is arguable that the 1937 Constitution presents an already-constructed paradigm of Irishness, without providing the flexibility for this paradigm to adapt to the changes brought about by increased ethnic, cultural, and religious diversity. This perspective is reinforced by the passage of an amendment to the Constitution in 2004 which removed the automatic birthright entitlement to citizenship for all those born on the island of Ireland. A central part of the referendum debate was the claim of ‘baby tourism’, perpetuated by the Government, to the effect that national maternity hospitals were being overrun by non-national pregnant mothers seeking to give birth in Ireland for the purpose of obtaining citizenship for the child and residence for the rest of the family.34

32

33

34

The meaning of Art. 2 in the context of immigration was also considered obiter by Fennelly J in his dissenting judgement in AO and LO v. Minister for Justice, Equality and Law Reform [2003] 1 IR 1, at 181. Elspeth Guild, ‘Cultural and Social Identity: Immigrants and the Legal Expression of National Identity’, in E. Guild and J. Van Selm (eds.), International Migration and Security: Opportunities and Challenges (Abingdon: Routledge, 2005), p. 110. See Michael McDowell (Minister for Justice, Equality and Law Reform), ‘Proposed Citizenship Referendum’, Sunday Independent, 14 March 2004.

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  ‘’   

6.2.3 A Liberal Democratic Constitution Capable of Evolving with a Diverse Society Due to the historical context in which it was conceived, Bunreacht na hÉireann does not expressly promote the values of multiculturalism or diversity, unlike its Canadian and South African counterparts (which, it must be noted, are unusual among constitutions in doing so). However, it should not be presumed that the historical background to and Catholic and nationalist ideologies endorsed in the text of the Constitution render the text in its application incapable of accommodating the diversity caused by immigration. In fact – and in spite of what has been said so far – Doyle notes that ‘any characterisation of the 1937 Constitution as narrowly nationalistic or sectarian is hard to square with its continued effectiveness’.35 Contemporary scholars broadly agree that there are competing intellectual traditions represented in the text, with the drafters successfully preserving a reasonable balance between the influences of Catholicism and secular liberal democratic thinking.36 While, symbolically speaking, a Catholic ideology is endorsed, no provision of the Constitution allows for legal discrimination against any religious or ethnic group. Overall, the Constitution provides for the separation of Church and State,37 and freedom of religion is strongly protected in the Constitution under Article 44. The sparse jurisprudence on Article 44 indicates that the free expression of other religions will be protected and accommodated.38 The provisions of Bunreacht na hÉireann do not subordinate one religious group to another and never have, even before the deletion of the ‘special position’ provision in 1972. Overall, most of the Irish fundamental rights provisions would not be out of place in a standard constitution of any liberal democracy and, indeed, through judicial interpretation, ‘these provisions have largely been reimagined as generic liberal constitutional rights’.39 While nationalism is strongly represented in the text of the Constitution, the constitution does not enshrine any legal basis for an advantageous position for any particular ethnic or social group. In terms of access to citizenship, Ireland does not impose an 35 36

37 38 39

Doyle, The Constitution of Ireland: A Contextual Analysis, p. 24. Ibid., p. 173; Gerard Hogan, ‘De Valera, the Constitution and the Historians’, p. 291; Daly, ‘Religion as Public Good and Private Choice in Irish Constitutional Doctrine’, p. 106. Art. 44.2.2 provides: ‘The State guarantees not to endow any religion’. See Quinn’s Supermarket v. Attorney General [1972] IR 1. Doyle, The Constitution of Ireland: A Contextual Analysis, p. 173.

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integration or language test on individuals seeking to naturalise, which makes its citizenship regime relatively liberal when compared to other EU Member States.40 This is most likely not due to an ideological objection to such tests, but rather the relatively under-developed state of Irish immigration and citizenship law.41 Furthermore, many of the more idiosyncratic features of the 1937 Constitution have been removed or modified by constitutional amendment, including those relating to the special position of the Catholic Church, divorce, the Belfast Agreement on the status of Northern Ireland, samesex marriage, and abortion.42 These constitutional revisions took place in tandem with a transformed conception of the place of religion in Irish society – a process of wide social and political change which in turn impacted the interpretation of a rather open-ended, flexible text.43 Overall, Doyle concludes that the Constitution ‘has therefore become less ideologically prescriptive. It has created a space in which different understandings of Irishness can evolve free from constitutional dictation’.44

6.3 The Position of Non-Citizens in the Constitutional Order: Case-Law Analysis Attempts to assess the impact of the constitutional values enshrined in the text of Bunreacht na hÉireann on migrants’ sense of belonging are inevitably somewhat speculative. Moreover, given the large body of constitutional jurisprudence, ‘(a)t this stage, any fair-minded critique of the Constitution must also have regard to the vast corpus of case-law which has been generated since 1937’.45 With this is mind, this part of the chapter moves to the concrete task of analysing the application and interpretation of the Constitution in cases involving the fundamental rights of non-citizens. Carens argues that once an individual has been 40

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44 45

See generally, Yves Pascouau and Philippe De Bruckyer, ‘Integration and Access to Nationality in EU Member Countries’, in OECD, Naturalisation: A Passport for the Better Integration of Immigrants? (Paris: OECD Publishing, 2011), p. 252. See generally, John Stanley, Immigration and Citizenship Law (Dublin: Thomson Round Hall, 2018). Michael Gallagher, ‘The Constitution and the Judiciary’, in John Coakley and Michael Gallagher (eds.), Politics in the Republic of Ireland, 4th ed. (Abingdon: Routledge, 2005), pp. 54–83. Daly, ‘Religion as Public Good and Private Choice in Irish Constitutional Doctrine’, p. 105. Doyle, The Constitution of Ireland: A Contextual Analysis, p. 64. Hogan, ‘De Valera, the Constitution and the Historians’, p. 317.

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  ‘’   

settled in a state for a reasonable period of time, they are morally entitled to all of the rights that citizens enjoy, ‘except for perhaps the right to vote, the right to hold high public office, and the right to hold high policymaking positions’.46 For Carens, this means that it is more appropriate, in a democratic state, to speak of ‘rights of membership’ rather than ‘rights of citizenship’.47 He reaches this conclusion even within the constraints of the conventional closed-borders view that states are entitled to regulate immigration. The bases of this theory are closely aligned with the universalist foundations of international human rights law48 and reflected in human rights instruments such as the ECHR, which applies to ‘everyone’ within the jurisdiction of the Contracting State.49 Nonetheless, the continued importance of formal citizenship is clearly illustrated in the reluctance of the Irish courts to extend the full range of constitutional rights to non-citizens resident within the territory.

6.3.1 Inconsistent Terminology in the Fundamental Rights Provisions Some political rights provided for in the 1937 Constitution are clearly and uncontroversially restricted to citizens, such as the right to vote50 and to stand for election to the Oireachtas51 and for President.52 Perhaps more significant from an overall rights protection point of view, however, are the right to trial in due course of law (provided for in Article 38.1) and the fundamental rights contained in Articles 40–44. While it appears certain that non-citizens enjoy the benefit of the right to trial in due

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Joseph Carens, "An Overview of the Ethics of Immigration" (2014) 17(5) Critical Review of International Social and Political Philosophy, p. 546. Ibid., p. 547. On the relationship between universal human rights norms and immigration, see for example, Alexandra Xanthaki, ‘Multiculturalism and International Law: Discussing Universal Standards’ (2010) 32(1) Human Rights Quarterly, 21–48; Morten Kjaerum, ‘Human Rights for Immigrants and Immigrants for Human Rights’, in Elspeth Guild and J. Van Selm (eds.), International Migration and Security: Opportunities and Challenges (London: Routledge, 2005), p. 51. Art. 16 ECHR creates a very limited exception to this general rule to allow for restrictions on the political activity of aliens. Re Article 26 and Electoral (Amendment) Bill [1984] I.R. 268 confirmed that Article 16.1, which confers the right to vote at elections for Dáil Eireann to ‘citizens’ did not contemplate the conferral of this right on non-citizens. Art. 16.1.1 and Art. 18.2. Art. 12.4.2.

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course of law,53 the extent of the protection afforded by Articles 40–44 has been more uncertain. The remit of the constitutional guarantees contained in Articles 40–44 has been difficult to ascertain due to the pervasive references to ‘citizens’ in these provisions. The equality provision in Article 40.1 confusingly provides that ‘All citizens shall, as human persons, be held equal before the law’ (emphasis added). Thus equality is tied to the human condition generally, but in the same breath seemingly limited to citizens. A similar conflict is evident in Article 40.4, which prohibits the deprivation of liberty of ‘citizens’ save in accordance with law in the first paragraph, but allows for habeas corpus applications to be made on behalf of ‘any person’. The other provisions in Article 40 focus in the main on protecting the ‘citizen’, including the right to a good name;54 the right to freedom of expression;55 of assembly;56 of inviolability of the dwelling;57 and of association.58 In contrast, the scope of Articles 41, 42, and 43 (protecting family, education, and property rights, respectively), in tune with the universalistic tone of the articles and their invocation of natural law, is not restricted by references to citizens. Finally, in Article 44, freedom of conscience and the free profession and practice of religion are guaranteed to every ‘citizen’.59 As Dewhurst points out, this variation in language is also evident in key texts such as the French Declaration of the Rights of Man and of the Citizen and the German Grundgesetz.60

6.3.2 Conflicting Decisions on the Status of Non-citizens in the Constitutional Order Judges have had to grapple with the variable language relating to the constitutional subject, with mixed results. The jurisprudence on this issue has evolved in a piecemeal and ad hoc fashion, representing a variety of

53 54 55 56 57 58 59 60

Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2002] 2 IR 360. Art. 40.3.2. Art. 40.6.1i. Art. 40.6.1ii. Art. 40.5. Art. 40.6.1iii. Art. 44.1. Elaine Dewhurst, ‘Exclusionary or Inclusionary Constitutional Protection: Protecting the Rights of Citizens, Non-citizens and Irregular Immigrants under Articles 40–44 of the Irish Constitution’ (2013) 49(1) Irish Jurist, 103.

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  ‘’   

viewpoints on the remit of constitutional protection.61 One approach has been to extend the protection provided in the Constitution to nonnationals, with the courts justifying this extension of constitutional rights on the basis of their duty to administer justice; on a natural law basis; and, in some cases, without providing reasoning on this point.62 In cases involving personal liberty, the courts have seemed ready to assume that non-citizens enjoy the benefit of the right.63 Similarly, it has been held that, in principle, non-nationals enjoy the right of access to the courts64 and to basic fairness of procedures.65 In Finn v. AG,66 a liberal approach to the use of the word ‘citizen’ was apparent in an interesting dictum of Barrington J in the High Court, where he concluded that to relieve the State of the obligation to defend and vindicate the lives of persons who are not citizens would be contrary to ‘the whole scheme of moral and political values which are clearly accepted by the Constitution’.67 He opined: It is arguable that these rights derive not from a man’s citizenship but from his nature as a human being. The State does not create these rights, it recognises them, and promises to protect them.68

This conception of citizenship, in tune with the higher or natural law ethos which permeates the fundamental rights provisions,69 comes closer to broad sociological or political formulations of citizenship than a formal legal conception of state membership.70 A similarly wide (albeit unexplained) approach was reflected more recently in Hogan J’s statement in Omar v. Governor of Cloverhill Prison that ‘[t]he Supreme Court

61

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See ibid.; William Binchy, ‘The Implications of the Referendum for Constitutional Protection and Human Rights – Part I’ (2004) 22 Irish Law Times, 154. The People v. Shaw [1982] IR 1 and Ji Yoa Lau v. Minister for Justice [1993] 1 IR 116; Omar v. Governor of Cloverhill Prison [2013] IEHC 579; CA & TA v. Minister for Justice and Equality [2014] IEHC 532. In The People v. Shaw [1982] IR 1 and Ji Yoa Lau v. Minister for Justice [1993] 1 IR 116, the courts assumed that aliens can invoke the protection of the Constitution. Re Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2002] 2 IR 360, at 385 per Keane CJ. See also Murphy v. Greene [1990] 2 IR 566, at 578. See State (McFadden) v. Governor of Mountjoy Prison [1981] ILRM 113. Finn v. AG [1983] IR 154. Ibid., p. 159. Ibid. See similar natural law reasoning in Northampton Co. Council v. F. and F. [1982] I.L.R.M. 164 at 166 (per Hamilton J.). Hogan et al., Kelly: The Irish Constitution, 5th ed., chapter 7.1. See also CA & TA v. Minister for Justice and Equality [2014] IEHC 532.

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has made it clear that the fundamental rights provisions of the Constitution apply without distinction to all persons within the State’.71 In other circumstances however,72 most notably in cases involving contentious aspects of immigration law, the approach adopted has been more restrictive. One of the most extensive examinations of the extent of the constitutional protection enjoyed by non-nationals was conducted by the Supreme Court in Re Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999.73 In this case, the Supreme Court was required to rule on the constitutionality of sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999.74 In a section of the judgement entitled ‘The constitutional status of non-nationals’, the Court started with a reminder that ‘the State . . . must have very wide powers in the interest of the common good to control aliens, their entry into the state, their departure and their activities within the state’.75 In spite of this strong endorsement of state discretion in the sphere of immigration, the Court accepted that non-nationals were entitled to the enjoyment of certain constitutionally protected rights, including the right to invoke the remedy of habeas corpus (Art 40.4.2), the right to equality (Art 40.1), and the unenumerated rights protected under Article 40.3.2, encompassing the right of access to the courts and the right of fair procedures. The right of access to the courts was seen as essential to the rule of law, with the legal status of the affected person immaterial.76 Similarly, nonnationals were found to enjoy the right to fair procedures and natural and constitutional justice.77 It is notable that in this decision, as well as other subsequent cases in which the Irish courts have handed down decisions which are favourable to the interests of non-citizens, the 71

72 73 74

75

76

77

He cites Re Article 26 and Electoral (Amendment) Bill [1984] I.R. 268 in support of his point. See for example State (Nicolaou) v. An Bord Uchtála [1966] IR 567. Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. Section 5 of the Bill limited the possibility of challenging a deportation order to judicial review proceedings, reducing the time-limit within which such an application must be made to 14 days and providing that leave to apply for judicial review was only to be granted where the applicant could show ‘substantial grounds’ for believing that the decision in question ought to be quashed. Under Section 10 of the Bill, a person against whom a deportation order is in force could be detained for up to eight weeks provided a number of criteria were satisfied. At 382, quoting from the judgment of Costello J in Pok Sun Shum v. Ireland [1986] ILRM 593. This was reiterated in Meadows v. Minister for Justice Equality and Law Reform [2010] IESC 3 per Denham J at para. 13. [2000] 2 IR 360, at 385.

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  ‘’   

reasoning has frequently been based on the duties of the State to act democratically and reasonably, rather than expressly drawing on the rights of the individuals involved.78 Notwithstanding the important concession that non-nationals were ‘not without rights while they are in the jurisdiction of the state’,79 the Court went on to differentiate between the scope of the rights enjoyed by citizens and by non-nationals without providing a test for determining whether a particular constitutional protection covers non-citizens. The Court also confirmed that the rights of non-nationals may be subject to conditions and limitations to which nationals may not be subjected.80 The principle that non-citizens’ rights are not necessarily co-extensive with the rights of the citizen was expressly confirmed in Oguekwe v. Minister for Justice, Equality and Law Reform.81 While this approach whereby non-citizens’ rights are not seen as identical to those of citizens – or may be limited in ways which would not be possible for citizens – is unsurprising, the way in which the courts have applied these principles in some cases, for example in Re Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999, is the cause of some concern. The Supreme Court in that case upheld the constitutionality of (i) stringent time limits for judicial review in migration cases and (ii) immigration detention, applying the presumption of constitutionality strictly and engaging in a rather minimalist and literal review of the legislative provisions.82 A restrictive approach was also recently in evidence in the judgement of the Court of Appeal in Dos Santos v. Minister for Justice and Equality,83 a case in which the applicants’ private life ties to the State had been created during a period of precarious residence (the applicants were a Brazilian man with an expired work permit and his wife and five children). The constitutional private life arguments put forward to resist

78

79 80 81

82

83

See, for example, Meadows v. Minister for Justice [2010] IESC 3, [2010] 2 IR 701; Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59. Ibid., at 384. Ibid. Oguekwe v. Minister for Justice, Equality and Law Reform [2008] 3 IR 795, at 811, per Denham J. Re Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2002] 2 IR 360, pp. 56–57. For a detailed analysis, see Siobhán Mullally, ‘The Irish Supreme Court and the Illegal Immigrants (Trafficking) Bill, 1999’ (2002) 13(3) International Journal of Refugee Law, 354. Dos Santos v. Minister for Justice and Equality [2015] IECA 210.

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deportation were rejected with little discussion. Finlay Geoghegan J found that non-citizen children do not have a personal right under Article 40.3 to a private life within the State or to participate in community life established in the State. In fact, she appeared to confine the rights of irregular non-citizen children to their rights as a member of a family under Articles 41 and 42, and ‘certain personal rights’ under Article 40.3.84 Overall, the analysis in the preceding paragraphs has revealed a hotchpotch of decisions from which no cogent approach or clear rationale emerges for extending (or not extending) the protection of constitutional rights to non-citizens.

6.3.3 A Change of Direction? An Equality and Dignity Based Approach in NHV v. Minister for Justice and Equality In an apparent change of direction, in a landmark judgement of May 2017, the Irish Supreme Court went back to first principles of human rights, equality, and dignity in assessing the scope of the constitutional rights of non-citizens in Irish law. NHV v. Minister for Justice and Equality85 was taken by a Burmese asylum seeker who had spent eight years in the asylum system in Ireland and was prohibited from working during this period by the relevant legislation.86 The Supreme Court, in a judgement delivered by O’Donnell J, accepted his argument that noncitizens had a constitutional freedom to work in Ireland (although that could be limited), and that the complete legislative ban on asylum seekers working was incompatible with the Constitution. This effectively struck down a long-standing, and controversial, government policy on asylum seekers and work. There are many notable aspects of this judgement, but here I will focus on O’Donnell J’s consideration of the constitutional rights of noncitizens. He starts by observing that ‘no comprehensive theory’87 has been advanced as to which constitutional rights non-citizens can rely on and that the case law has proceeded on an ad hoc basis. This issue had

84

85 86

87

Ibid., para. 10, referring in turn to the rights identified in G v. An Bord Uchtala [1980] IR 32, pp. 55–56. [2017] IESC 35. Section 9(4) of the Refugee Act 1996, as replaced by section 15 of the International Protection Act 2015. Para. 11.

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  ‘’   

not been adequately resolved in the 60 years since it was initially raised. To address this question of constitutional interpretation O’Donnell takes a purposive approach, drawing on his own previous suggestion in the Supreme Court in Nottinghamshire County Council v. KB88 (a family law child abduction case) that the equality guarantee contained in Article 40.1 may provide a useful insight and approach to this difficult question. He finds that a non-citizen (including an asylum seeker) may be entitled in principle to invoke a personal constitutional right ‘if it can be established that to do otherwise would fail to hold such a person equal as a human person’.89 He elaborates on this broad-brush statement by adding: This involves . . . a consideration of whether the right is in essence social, and tied to the civil society in which citizens live, in the way that it might be said that voting is limited by belonging to the relevant society, or whether the right protects something that goes to the essence of human personality so that to deny it to persons would be to fail to recognise their essential equality as human persons mandated by Article 40.1.90

In relation to the socio-economic right to work – which is not actually contained in the constitutional text but is an ‘unenumerated’ constitutional right – O’Donnell J goes on to find that: . . . a right to work at least in the sense of a freedom to work or seek employment is a part of the human personality and accordingly the Article 40.1 requirement that individuals as human persons are required be held equal before the law, means that those aspects of the right which are part of human personality cannot be withheld absolutely from noncitizens.91

The emphasis is firmly placed on the Constitution as founded on human dignity and ‘the essential equality of the human person’.92 The Supreme Court recognises that the freedom to work of non-citizens may be significantly restricted for policy reasons which could not be applied to citizens, and ‘which courts should be extremely slow to second guess, even by reference to a proportionality standard’.93 However, a violation is

88 89 90 91 92 93

Nottinghamshire County Council v. KB [2013] 4 I.R. 662. Para. 11. Para. 13. Para. 17. Para. 16. Para. 18.

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found in this case because the right was completely removed indefinitely for asylum seekers pending the final determination of their claim.

6.3.4 Breaking down the Citizen–Foreigner Distinction: How and Why? The Supreme Court’s use of the equality guarantee, combined with the concept of human dignity, as the method to ascertain the rights of noncitizens is an almost purely human rights-based rationale which does not allow for a strict dichotomy between the rights of citizens and noncitizens. It insists that constitutional rights protection is based on a foundation of equality among human persons rather than depending on the formal legal status of individuals. This has important implications for the rights of all non-citizens, including irregular migrants who often face restrictions solely because of their lack of legal status. We have not seen this type of unabashed human rights reasoning in an Irish immigration case before this, and it certainly contrasts with that adopted in Re Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999, for example. Indeed, in using the equality and dignity of the individual as its starting point, the whole ordering of the decision in NHV is different. Rather than starting a consideration of the rights of migrants by outlining the entitlement of the state to control migration, the Court starts by considering whether the right applies in principle, then assesses whether the restriction is disproportionate. Desmond Ryan and I have argued elsewhere94 that in constructing its test for ascertaining the personal scope of constitutional protections on the twin foundations of equality and dignity, and examining the substance of the right to work for noncitizens prior to examining the interests of the state in restricting that right, the Supreme Court follows a ‘human first’ approach, as advocated by Dembour, for example.95 Why this universalist turn in the case-law interpreting an explicitly nationalist Constitution? While this issue is not explicitly discussed in the judgement, it is possible to identify three important aspects of the legal and social context to the Supreme Court’s approach. First, the societal 94

95

Clíodhna Murphy and Desmond Ryan, ‘Work, Dignity and Non-citizens: Reflections from the Irish Constitutional Order’, Public Law (2019) (1), 30–40. Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford: Oxford University Press, 2015), p. 8.

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

  ‘’   

context is the increasing number of long-term non-citizen residents (including EU citizens) living in Ireland under a variety of legal statuses regulated by legislation and administrative law. Secondly, the constitutional value of dignity has been utilised with increasing frequency by the Irish courts in recent years.96 O’Mahony notes that the courts have been rather vague as to what exactly the constitutional concept of dignity entails,97 however, he reminds us that the core of dignity in comparative jurisprudence and international human rights law is that all human beings should be afforded human rights on the basis of equal treatment and respect.98 Consequently, it is difficult to square the idea of dignity with an exclusive dividing line between the rights of citizens and non-citizens. The third influencing factor is the infusion of domestic constitutional and migration jurisprudence with broader human rights norms which has taken place since 1937. The ECHR, in particular, has had a significant impact on migration law cases in recent years.99 Illustrating the crossfertilisation of international, EU, and domestic law, O’Donnell J explicitly draws support for his conclusions in NHV from two external sources: Article 15 of the EU Charter of Fundamental Rights; and Article 6 of the International Covenant on Economic and Social Rights (and General Comment No. 18 of the Committee on Economic, Social and Cultural Rights on the Right to Work).100 Overall, the evolution of the case-law on non-nationals can be seen as part of the broader trend (identified in section 1) towards the modernisation of constitutional jurisprudence and the softening of national identity in Ireland. Zooming out further, the Irish case provides a good example of what Somek describes as ‘cosmopolitan constitutionalism’”101

96

97 98

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100 101

Conor O’Mahony, ‘The Dignity of the Individual in Irish Constitutional Law’, in D. Grimm, A. Kemmerer, and C. Mullers (eds.), Human Dignity in Context (BadenBaden: Hart Publishing, 2016), p. 471. Ibid., p. 472. For a thorough discussion, see O’Mahony, ‘There is No Such Thing As a Right to Dignity’. Clíodhna Murphy, ‘Challenging Deportation on the Basis of “Private Life”: The Evolving Impact of Article 8 on Irish Immigration Law’, in S. Egan, L. Thornton, and J. Walsh (eds.), Ireland and the European Convention on Human Rights: 60 Years and Beyond (London: Bloomsbury, 2014), pp. 183–200. Un Doc. E/C.12/GC/186 February 2006, adopted 24 November 2005. Alexander Somek, The Cosmopolitan Constitution (Oxford: Oxford University Press, 2014).

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in Western European countries. While the 1937 Constitution was drafted to express popular sovereignty and constituted an act of selfdetermination, it is now conceived by the courts to be constrained by human rights and it follows that the fundamental rights of non-citizens must be protected thereunder.

6.3.5 Future Directions: Increasing Openness to Rights Claims, Ongoing Resistance to the Dismantling of Citizenship As the Fundamental Legal Status? McCormack-George neatly sums up the effect of the decision in NHV as follows: Work on the issue of asylum seekers’ right to work in Ireland is on-going, with many facing further procedural hurdles in obtaining stable employment. But the threshold issue – being granted the right to work – has been overcome.102

The European Communities (Reception Conditions) Regulations 2018103 were subsequently adopted in order to transpose the Reception Conditions Directive,104 which the State had decided to opi into following NHV. Under these Regulations, a labour market access permission may be granted if applicants have not received a first instance decision on their international protection claim after nine months, through no fault of their own.105

102

103 104

105

McCormack-George, ‘Asylum Seekers and the Right to Work in Irish Law’, p. 187. Irish Refugee Council, ‘Supreme Court Paves the Way to the Right to Work for Asylum Seekers’ (30 May 2017), available at www.irishrefugeecouncil.ie/news/irish-supremecourt-paves-the-way-for-right-to-work-for-asylum-seekers/5667; Irish Human Rights and Equality Commission, ‘Right to Work of People in Direct Provision’ (30 May 2017) available at www.ihrec.ie/right-work-people-direct-provision-commission-wel comes-supreme-court-decision. Conor O’Mahony, ‘Unenumerated Rights after NHV?’ (2017) 40(2) Dublin University Law Journal, 171–190. S.I. 230 of 2018. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection OJ L 180, 29 June 2013, pp. 96–116. See “Statement by the Minister for Justice and Equality on the Right to Work for Asylum Seekers” (9 February 2018), available at http:// www.inis.gov.ie/en/INIS/Pages/statement-on-right-to-work-asylum-seekers-090218 (last checked 25/08/2020). Regulation 11(4).

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  ‘’   

Although it has been described as ‘an easy case’,106one in which ‘the applicants occupied sympathetic, even tragic, positions in Irish society’,107 NHV does not appear to be a one-off judgement which ought to be confined to its facts. A similarly broad view on the importance of rights considerations in the context of migration processes can be seen in a subsequent Supreme Court decision on the residency rights of individuals with timed-out student visas.108 The Supreme Court judgement was primarily concerned with statutory interpretation, which analysis was supported by the consideration of Article 8 ECHR relating to family and private life. MacMenamin J, speaking for the Court, expressly rejected the Minister’s assertion that Article 8 rights were not engaged and did not have to be considered by the Minister in the context of the statutory application process at issue.109 The original applications in this case had been framed from the outset in terms of Article 8 ECHR family rights, as is usual in these types of applications due to ongoing uncertainty relating to the scope and impact of Article 41 constitutional family rights in deportation cases involving non-citizens. The Supreme Court noted obiter, however, that ‘these appeals, might, potentially, have been considered by reference to constitutional rights identified under Article 41 of the Constitution, concerning the right to family life’.110 Conversely, the Court of Appeal decision in Agha and Osinuga v. Minister for Justice and Equality demonstrates how difficult the transformative potential of NHV will be to realise, especially outside of the narrow question of whether a constitutional right applies to a noncitizen.111 Here, the Court restated the importance of citizenship and the benefits which the formal legal status provides to individuals without engaging with an NHV-style equality–dignity analysis. This case concerned two joined appeals from High Court decisions relating to the refusal of child benefit for the children of asylum seekers living in direct

106 107 108

109

110 111

McCormack-George, ‘Asylum Seekers and the Right to Work in Irish Law’, p. 188. Ibid. Luximon & ors v. Minister for Justice & Equality and Bachand & ors v. Minister for Justice & Equality [2018] IESC 24. See also the approval of the approach in NHV in IRM v. Minister for Justice and Equality [2018] IESC 7. Luximon & ors v. Minister for Justice & Equality and Bachand & ors v. Minister for Justice & Equality [2018] IESC 24, para. 86. Ibid., para. 55. Agha v. Minister for Social Protection; Osinuga v. Minister for Social Protection [2018] IECA 155.

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provision. The child applicant in Osinuga was an Irish citizen from birth but lived in a direct provision centre with her mother, who was an asylum seeker. The appeal in Agha centred around a child who had been recognised as a refugee but lived with his parents in direct provision. The Court of Appeal found that the parent of the Irish citizen child was entitled to receive child benefit from birth, on the basis of the equality guarantee in Article 40.1: Victoria Osinuga was treated differently to all other Irish citizen children in respect of access to child benefit, in a manner that could not be objectively justified. However, the Agha family were not entitled to receive child benefit in respect of their noncitizen refugee child, Daniel. Hogan J, delivering the judgement of the Court of Appeal, observed: The difference, therefore, between the position of Victoria on the one hand and Daniel on the other so far as the constitutional issue is concerned can be summed up by one word, namely, citizenship. . . . [S]ubject only to the EU law point, the Oireachtas is generally free to condition the making of social security payments to non-citizen residents which would not be constitutionally acceptable in the case of residents who are also citizens.112

The Supreme Court decision on the appeals of both cases delivered a similarly disappointing result, albeit for different reasons which did not focus on citizenship.113 It found that the parents of the citizen child were not in fact entitled to child benefit for that child, and, in respect of the non-citizen child, found that the payment should not be backdated to the date on which the child’s refugee status was granted. Dunne J, with whom the other judges concurred, found that the Court of Appeal’s approach that child benefit was an entitlement of the child was incorrrect. The qualifying person for the purposes of the welfare legislation was the parent, therefore ‘[t]he status of the child is neither here nor there.’114 No constitutional equality issue arose, as all parents in Ireland needed to satisfy the habitual residence condition to be entitled to child benefit (which cannot be satisfied by those within the asylum process). The reasoning on this point relies on familiar arguments relating to the State’s interest in regulating migration:

112 113 114

Para. 47. [2019] IESC 82. Ibid., at para. 65.

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  ‘’    I am satisfied that the State is entitled to have in place measures designed to prevent unlimited migration. . . . The State must be entitled to regulate the manner in which it provides for those in the State whose status has not yet been determined. The Act of 2005 ensures that those who are granted permission to reside in the State or a declaration of refugee status are thereafter entitled to payment of child benefit without distinction between such individuals and any other person entitled to reside in this jurisdiction.115

It is notable that neither the Court of Appeal nor the Supreme Court dug down into the potential equality or dignity ramifications of child benefit refusal, or considered the broader human rights implications for the children affected. The potential relevance of NHV was not considered by the Supreme Court. All of this can be partly explained by the fact that, unlike the freedom to seek employment, there is no constitutional right to welfare payments as such, meaning that a statutory right is at issue, raising different considerations. However, the decision illustrates the enduring limits of equality-type claims and suggests that distinctions based on migration status will persist in the case of those seeking to access socio-economic public goods such as welfare support.

6.4 Conclusion Jesse correctly points out that the law cannot enforce integration; rather, it ‘has to create the room necessary for all individuals and institutions involved for integration to occur’.116 This chapter has explored two ways in which constitutional law plays a role in this process in Ireland. First, it examined national identity as enshrined in the text of the 1937 Constitution. It found that the tolerance and accommodation of different cultures, traditions, and religions is not a key element of Irish public philosophy as expressed in the Constitution. However, despite the strong Catholic and nationalist influences on the constitutional text, it should be flexible enough to accommodate new perceptions of Irishness in what is now a well-established immigrant-receiving society. The second part of the chapter considered the constitutional position of non-citizens in Ireland. One of the broad aims of this analysis was to highlight the ongoing potential of domestic constitutional law in breaking down barriers between citizens and ‘others’ as rights bearers. At a 115 116

Ibid., at Para. 76. Jesse, The Civic Citizens of Europe, p. 5.

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time when ECJ has expressly approved the use in principle of civic integration tests as a means of facilitating integration;117 when it is argued that the European Court of Human Rights is too cautious in defending the human rights of migrants;118 and when state agendas may be diluting the effectiveness of the work of international human rights bodies on integration,119 perhaps it is time to turn to (and creatively draw on) the in-built human rights foundations of national constitutional law to advocate for an equality-based approach to the inclusion of immigrants. Further research is needed to examine this question fully. However, the recent authoritative statement of legal principle in the Irish Supreme Court – based on the equality of human persons – could provide an inclusive foundation for the development of domestic rights protections for non-citizens in Ireland and elsewhere. The net effect of this would be to significantly reduce the legal ‘othering’ of non-citizens in domestic law. 117

118

119

Case C-57913 P&S, EU:C:2015:369, para. 49; Case C-153/14; K and A, EU:C:2015:453, para. 53 and 57. For commentary, see Moritz Jesse, ‘Integration Measures, Integration Exams, and Immigration Control: P and S and K and A’ (2016) 53(4) Common Market Law Review, 1065–1088; Daniel Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law. Comments on P&S and K&A’ (2016) 18(1) European Journal of Migration and Law, 100–101. Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint. Alexandra Xanthaki, ‘Against Integration, for Human Rights’ (2016) 20(6) The International Journal of Human Rights, 815–838.

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7 Hierarchies of Privilege Juxtaposing Family Reunification Rights, Integration Requirements, and Nationality in EU Law

 

7.1 Introduction The creation of Union citizenship has disrupted the binary logic of ‘national’ and ‘foreigner’.1 At first sight, it seems to have been recreated as the ‘EU citizen’ and ‘Third Country National’ (TCN); however, on a closer look, it becomes apparent that the new picture is much more complex, as a new hierarchy of statuses with different packages of rights has been created at the EU level for nationals, EU citizens, and TCNs alike. Each status/category has its very own sub-category of the ‘other’, the ‘unwanted’, the one that is seen as less worthy or less deserving. An area in which this ‘othering’ mechanism can be seen quite clearly at play is in family reunification. Family reunification policies are believed to play an important role ‘in politics of belonging, and . . . production of collective identities, i.e. in defining who ‘we’ are and what distinguishes ‘us’ from ‘others’.2 This chapter focuses on EU legislation and policies on family reunification and aims to demonstrate how they create new ‘privileged’ categories as well as new ‘others’. There is no international instrument that ‘establishes family reunification as a fundamental right’ in the sense of bringing a family together 1

2

See Section 2.3 by Jesse; and M. Jesse, ‘“Disrupting and Annoying” – EU Citizenship and EU Migration Law Destroying Old Habits of National Migration Policy Making’, in M. de Visser and A. P. van der Mei (eds.), The Treaty on European Union 1993–2013: Reflections from Maastricht (Antwerp: Intersentia, 2013), pp. 407–428. T. Strik, B. de Hart and E. Niessen, Family Reunification: A Barrier or Facilitator of Integration? A Comparative Study (Brussels: European Commission DG Home, 2013), p. 50. See also, S. Bonjour and B. de Hart, ‘A Proper Wife, a Proper Marriage. Constructions of ‘Us’ and ‘Them’ in Dutch Family Migration Policy’ (2013) 20(1) European Journal of Women’s Studies, 61-76.

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in a specific place where one family member happens to live.3 States see it as a ‘privilege’ they can grant or withhold in line with their immigration policies.4 Even though it is an essential component of the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR),5 the case law of the European Court of Human Rights is clear that there is no such right for migrants in a state of their choice.6 In the EU legal framework, Article 7 of the Charter of Fundamental Rights of the EU (CFR)7 replicates Article 8(1) ECHR, but only as a minimum standard.8 With the adoption of the Family Reunification Directive,9 EU law has gone beyond the ECHR and, with the words of the Court of Justice of the European Union, has created a right to reunification for families from third-countries within the European Union, albeit one subject to limitations and conditions.10 The right for EU citizens to be with their family members has long been established. However, the Family Reunification Directive, (Directive 2003/86/EC), as well as EU citizenship rules arguably still function as mechanisms for ‘othering’ due to their limitations, conditions, and selective application. Different categories of people are created in each group with different procedures and conditions to fulfil to be able to join their loved ones. As the chapter will argue, out of a host of characteristics, such as nationality, ethnic background, economic activity, culture, religion, wealth, education level, or skills, two factors stick out, namely nationality and qualifications. For the purposes of this chapter, these two characteristics shall guide the analysis of how easy or difficult the process of family reunification of someone will be. In this regard, nationality provides indications on factors such as culture, religion, and income, which together determine at which point on the ‘us versus others’ spectrum a 3

4 5

6

7

8 9

10

G. Lahav, ‘International versus National Constraints in Family-Reunification Migration Policy’ (1997) 3(3) Global Governance, 349–372. Ibid., p. 367. European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. Appl. No. 50435/99, Rodrigues da Silva and Hoogkamer v. the Netherlands, judgment of 31 January 2006, para 39. See also, K. Groenendijk, ‘Family Reunification as a Right under Community Law’ (2006) 8(2) European Journal of Migration and Law, 218–219. Charter of Fundamental Rights of the European Union (CFR), OJ 2016 No. C 202, 7 June 2016, pp. 389–405. Art. 52(3) CFR. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (FRD), OJ 2003 No. L 251, 3 October 2003, pp. 12–18. Case C-540/03, European Parliament v. Council ECLI:EU:C:2006:429.

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  

particular nationality is. The closer to ‘us’ the easier the family reunification process will be. What can ease the process for those at the ‘others’ end of the spectrum is the possession of qualifications in high demand or projected economic potential. Highly qualified individuals will find it easier to migrate with family than unqualified individuals. As will be shown, there are several reasons for the controversial nature of family reunification and the selectivity applied by rules and regulations in the EU. Identity politics and immigration are closely intertwined, and family reunification provides one of the dominant legal channels of immigration to the EU.11 Member States resist losing control over their immigration rules, which they see as the ultimate expression of their sovereignty.12 Moreover, since family members are not selected based on their skills or merit, fears exist that liberal family reunification policies will ‘produce an inflow of economically unproductive migrants, who are potentially a burden on the welfare state’.13 By introducing extra conditions in the form of compulsory integration requirements, Member States believe they can still exercise a form of control by ‘selecting’ from the family members of sponsors.14 By looking at who is subject to these integration requirements and for whom those are waived or relaxed, this chapter will deduce the lawmakers’ perception of someone’s place on the ‘us versus others’ spectrum.

7.2

A (Conditional) Benchmark: Family Reunification Rights of EU Citizens

Before developing a hierarchy of ‘privilege’ granted to different nationalities and different categories of people, the rules on family reunification

11

12

13

14

According to the Commission, in 2017 28 per cent of the permits issued for the first time to TCNs were for the purpose of family reunification. See, European Commission, ‘Report on the implementation of Directive 2003/86/EC on the right to family reunification’, COM(2019) 162 final, Brussels, 29 March 2019, p. 1. C. Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67(4) The Modern Law Review, 588–615. While some believe family reunification is beneficial for the integration of TCN migrants into their hosts Member States, others believe it has a negative impact on integration, as it might facilitate the creation of segregated communities. For more details on both sides of the argument, see L. Block, ‘Regulating Membership: Explaining Restriction and Stratification of Family Migration in Europe’ (2015) 36(11) Journal of Family Issues, 1437–1439. M. Jesse, ‘The Selection of Migrants Through Law – A Closer Look at Regulation Governing Family Reunification in the EU’, in F. Anthias and M. Pajnik (eds.), Contesting Integration, Engendering Migration: Theory and Practice (London: Palgrave Macmillan, 2014), pp. 86–101.

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that apply to ‘us’ at the EU level need to be established first. The picture is more complex than simply equating ‘us’ with Union citizens. Union citizens, since the ‘Dano-Trilogy’ case law,15 enjoy an unconditional right to family reunification only once their right to legal residence under Directive 2004/38 is established.16 Only economically active Union citizens enjoy an unconditional right to family reunification; others, the economically inactive and students, need to satisfy certain conditions to be able to reside legally and be joined by their family members on the territory of the host Member State. Whereas those who have never exercised their right to free movement are not able to rely on EU law at all.17 Nationals of all Member States are Union citizens according to Article 20 TFEU, and for matters falling within the scope of application of the Treaties their right to equal treatment is laid down in Article 18 TFEU. The details of this constitutional right to free movement are further laid down in the Citizen’s Directive.18 All Union citizens and their family members have a right to entry and residence in another Member State for a period of up to three months, including their TCN family members who are in possession of a valid passport.19 Those who want to reside for longer than three months need to be economically active, self-sufficient, or students (Articles 7(1)(a), (b), and (c) Citizen’s Directive). Only the family members of Union citizens who fulfil the conditions of residence in Articles 7(1)(a), (b), or (c) have the right to accompany or join them in the host Member State (Articles 7(1)(d) and 7(2)). It should be noted that the conditions stipulated in these provisions, which are examined in Section 7.2.1, are conditions of residence for Union citizens and not conditions to be fulfilled by family members. The right to family reunification is linked directly to the residence right of the Union citizen. If he or she has a right to residence, then he or she has a right to be accompanied or joined by his/her family members. Before examining

15 16

17

18

19

See Section 15.2 by Jesse and Carter. Even in cases of return, legal residence in the host Member State has significant importance, see return case C-456/12, O and B ECLI:EU:C:2014:135, paras. 50–56. Unless they fall within the closed scope of the Zambrano line of cases, see Case C-34/09, Zambrano ECLI:EU:C:2011:124; Case C-304/14, CS ECLI:EU:C:2016:674; and Case C165/14, Redon Marin ECLI:EU:C:2016:675. Cf. Case C-434/09, McCarthy ECLI:EU: C:2011:277; and Case C-256/11, Dereci ECLI:EU:C:2011:734. Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizen’s Directive), OJ 2004 No. L158, 30 April 2004, pp. 77–123. Art. 6 Directive 2004/38/EC.

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  

these conditions, it is important to establish the family members who have the right to join the EU citizen in the host Member State. The definition of a ‘family member’ is specified under Article 2(2) of the Citizen’s Directive, which provides that the spouse/registered partner of the Union citizen, their children under the age of 21 (or older but dependent), and their dependent parents have a right of entry, residence, as well as to work. These rights also apply to family members who are TCNs. Other family members, for instance, those who are dependent on the Union citizen, who lived under the same roof in the home Member State, or require personal care for medical reasons, do not have the right to join the Union citizen. The host Member State has the obligation to merely ‘facilitate’ their entry and residence.20 Last but not least, family members of Union citizens are not subject to any housing requirements or integration conditions, for example in the form of language tests or tests on the culture of the host society to be able to join or reside with their family members. Similarly, there are no conditions for their access to the labour market of the host Member State or to enjoy equal treatment under the same conditions as their family members who are Union citizens, as laid down in Article 24 of the Citizen’s Directive.

7.2.1 Economically Active: Unconditional Right to Residence and Family Reunification As mentioned in Section 7.2, the economically active Union citizens are the ones enjoying an unconditional right to family reunification under EU law. However, economic activity on its own is not sufficient. The other important element to trigger EU law and enjoy the right to family reunification is ‘cross-border’ movement within the EU. Economic activity, however short, that fulfils the conditions of EU law will make rights to equal treatment available under the Directive.21

7.2.2 Economically Inactive: Conditional Rights to Family Reunification Economically inactive Union citizens and their families also have a right to residence in a Member State other than their own; however, that right 20

21

Art. 3(2) Directive 2004/38/EC, see also Case C-83/11, Rahman and Others ECLI:EU: C:2012:519. See in this regard, Case C-483/17, Tarola v. Ireland ECLI:EU:C:2019:309.

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is conditional on having sufficient resources and comprehensive sickness insurance.22 For students, the conditions are enrolment in a public or private education establishment, comprehensive sickness insurance, and a declaration of sufficient resources for themselves and their family members.23 Both the self-sufficient and the students are not supposed to become a burden on the social assistance system of the host Member State.24 Union citizens (and their families) who are not economically active or self-sufficient and constitute a burden on the host Member State cannot rely on the provisions of the Citizen’s Directive or the citizenship provisions of the Treaty to claim residence rights in a host Member State.25 They are the ‘others’ among the Union citizens. Those in precarious employment situations are the potential ‘others’, who walk a fine line and are closely watched in case they cross it.26

7.2.3 Static Citizens: No Right to Family Reunification under EU Law The second category of ‘others’ among the Union citizens are ‘static’ Union citizens, i.e. those who have never exercised their freedom to move to another Member State. These citizens are not able to rely on EU law,27 and depending on the national law of the state of which they are nationals, they could be subjected to certain requirements to be joined by their TCN family members to which a worker from another Member State will not be subjected to. This phenomenon is called ‘reverse discrimination’.28 In the Netherlands for instance, ‘static’ Dutch citizens who want to be 22 23 24

25

26 27

28

Art. 7(b) Directive 2004/38/EC. Art. 7(c) Directive 2004/38/EC. The threshold of becoming a burden is higher for students. According to the CJEU, they should not become ‘an unreasonable burden on the public finances of the host Member State’ [emphasis added]. See Case C-184/99, Grzelczyk ECLI:EU:C:2001:458, para 44. See C-333/13, Dano ECLI:EU:C:2014:2358, see on the judgments Chapter 15 by Jesse and Carter. Case C-67/14, Alimanovic ECLI:EU:C:2015:597. There is an exception within the category of ‘static’ Union citizens created by the case law of the CJEU, when EU citizen minors and their parents are involved. If denial of residence rights for TCN family members on the territory of a Member State would result in forcing the EU citizen minors to leave the territory of the EU, they are protected by the citizenship provisions of the Treaty. For examples, see footnote 17. See D. Hanf, ‘“Reverse Discrimination” in EU Law: Constitutional Aberration, Constitutional Necessity, or Judicial Choice?’ (2011) 18(1–2) Maastricht Journal of European and Comparative Law, 29–61; and N. Nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move On?’ (2002) 39(4) Common Market Law Review, 731–771.

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  

joined by a TCN spouse are subject to the same conditions as TCNs under the FRD.29 Not all Member States are as harsh. Countries with traditionally stronger family reunification rights, such as Germany and France for instance, are more lenient towards their own nationals and exempt them from income requirements.30 However, these rules that allow for family reunification in these cases are of national and not of EU law. In short, Member States are in principle free to impose stricter or more liberal conditions to their own citizens, as EU law does not apply. The main external constraint, apart from the above-mentioned Zambrano line of cases, on restrictive national policies in this type of cases is the ECHR.

7.3 Rights Granted under International Agreements of the EU Just as there is a hierarchy regarding the family reunification rights granted to different categories of EU citizens, there is also a hierarchy regarding the rights granted to nationals of different countries with which the EU has signed international agreements. To begin with the top of the hierarchy, the most extensive family reunification rights have been granted under the European Economic Area (EEA) Agreement.31 The rights of the nationals of the EEA states mirror the rights enjoyed by Union citizens. The EEA nationals are followed by Swiss nationals, who also enjoy rights coming very close to those of Union citizens. Third in the hierarchy are Turkish nationals, whose right to family reunification is not covered by substantive provisions in the EU–Turkey Association Agreement or Decisions of the Association Council32 but are incidentally affected by virtue of procedural rules, the so-called ‘standstill’ clauses, which will be explained in more detail in Section 7.3.2. There are no rules on family reunification in other international agreements but merely references to existing rules in secondary law.

29

30

31 32

See the information leaflet on the website of the Dutch Immigration and Naturalization Service, ‘Enabling a family-member or relative to come to the Netherlands’, https://ind.nl/ en/Forms/3085.pdf; see also Chapter 8 by Kolbaşı-Muyan. See S. Bonjour and L. Block, ‘Ethnicizing Citizenship, Questioning Membership. Explaining the Decreasing Family Migration Rights of Citizens in Europe’ (2016) 20(6–7) Citizenship Studies, p. 791. Agreement on the European Economic Area, OJ 1994 No. L1, 3 January 1994, pp. 3–522. Agreement establishing an Association between the European Economic Community and Turkey, Ankara, 12 September 1963 (Ankara Agreement [AA]), OJ 1973 No. C113, 24 December 1973, pp. 2–8.

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7.3.1 Free Movement of the EEA Nationals and Swiss Nationals 7.3.1.1 The EEA Agreement The EEA Agreement establishes the most advanced economic framework for relations between the EU and the three EFTA states, Iceland, Norway, and Liechtenstein. It extends the EU’s internal market to these states. That extension entails the adoption of the relevant internal market acquis by them, including the rules on free movement of persons. The Citizen’s Directive has been incorporated into the EEA Agreement with some adaptations33 and has been renamed as the Residence Directive.34 One of these logical adaptations is the replacement of the words ‘Union citizen(s)’ by the words ‘national(s) of EC Member States and EFTA States’.35 This means that, in practice, the provisions of the Citizen’s Directive apply to the nationals of the EEA states in the same way as they apply to nationals of the Member States of the Union. Everything introduced in Section 7.2 on the right to family reunification of Union citizens under Directive 2004/38 also applies regarding the rights of the EEA nationals and their family members.36 As far as the right to family reunification is concerned, the case law of the EFTA Court provides the same level of protection as that of the CJEU.37 7.3.1.2 EU–Swiss Agreements on Free Movement of Persons (AFMP) Relations between Switzerland and the EU are more complex as they are governed by more than 100 sectoral agreements, one of which is the

33

34

35 36

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It has been incorporated into the EEA Agreement at point 1 of Annex V and point 3 of Annex VIII to the Agreement by the EEA Joint Committee Decision No. 158/2007 of 7 December 2007, OJ 2008 No L124, p. 20 and EEA Supplement 2008 No. 26, p. 17. It entered into force on 1 March 2009. G. Baur, M. S. Rydelski and C. Zatschler, European Free Trade Association (EFTA) and the European Economic Area (EEA), 2nd ed. (Alphen aan den Rijn: Wolters Kluwer, 2018), p. 68. Art. 1 of EEA Joint Committee Decision No. 158/2007. There was a Joint Declaration by the Contracting Parties attached to the EEA Joint Committee Decision No. 158/2007, which states that ‘The incorporation of Directive 2004/38/EC into the EEA Agreement shall be without prejudice to the evaluation of the EEA relevance of future EU legislation as well as future case law of the European Court of Justice based on the concept of the Union Citizenship.’ As far as the right to family reunification is concerned, the case law of the EFTA Court provides the same level of protection as that of the CJEU. See Case E-04/11, Arnulf Clauder, judgement of 8 April 2013; and Case E-28/15, Jankuba Jabbi v. The Norwegian Government, judgement of 26 July 2017. See also, C. Tobler, ‘Free Movement of Persons in the EU v. in the EEA: Of Effect-Related Homogeneity and a Reversed Polydor Principle’ (2018) 3(3) European Papers, p. 1444.

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  

Agreement on Free Movement of Persons (AFMP).38 The Agreement was signed in 1999 and entered into force in 2002. It provides for the free movement of the employed and self-employed in Article 1(a) AFMP, free movement of services for short duration in Article 5 AFMP, as well as the free movement of the economically inactive in Article 6 AFMP. The freedom of establishment in this legal framework applies only to natural persons, i.e. the self-employed. The preamble to the agreement provides that the parties are ‘resolved to bring about the free movement of persons between them on the basis of the rules applying in the European Community’. To achieve that aim, the agreement and its annexes often refer to EU secondary law. Moreover, Article 16(2) of the Agreement obliges Switzerland to take into account the case law of the CJEU delivered prior to the signing of the Agreement on 21 June 1999 when interpretation of EU law based concepts or provisions of the Agreement are concerned. The EU’s efforts to persuade Switzerland to ‘adopt’ the Citizen’s Directive have not been successful so far.39 Therefore, the rules on family reunification are still to be found in the AFMP and its annexes. The logic to the right to family reunification is similar to the one that applies to Union citizens, i.e. the right to legal residence gives rise to the right to family reunification. It should be noted that in this context the right to family reunification is subject to some formalities. Family members might be required to provide a limited number of documents listed in Article 3(3) Annex I AFMP for the issuance of their residence permits. It is also worth noting that the definition of a ‘family member’ in the context of the AFMP is similar to that provided for in Directive 2004/38/EC, but not identical. The main difference is that Article 3(2) Annex I AFMP does not extend the right to family reunification to ‘partners’ as Article 2(2)(b) of the Directive does. The employed, Article 6 Annex I AFMP, the self-employed, Article 12 Annex I AFMP, and the self-sufficient, Article 24 Annex I AFMP,40 38

39 40

Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (AFMP), OJ 2002 No. L114, 30 April 2002, pp. 6–72. For a more detailed analysis of the bilateral framework see, C. Tobler and J. Beglinger, Grundzüge des bilateralen (Wirtschafts-)Rechts Scheiwz – EU. Systematische Darstellung in Text und Tafeln, 2 vols. (Zürich: Dike, 2013); and M. Oesch, Switzerland and the European Union: General Framework, Bilateral Agreements, Autonomous Adaptation, (Zürich: Dike Verlag AG, 2018). Oesch, Switzerland and the European Union, p. 62. The rules on the residence of the economically inactive are similar to those applying to Union citizens. Art. 24 of Annex I to the AFMP provides that such a person needs to have for himself and his family ‘(a) sufficient financial means not to have to apply for social assistance benefits during their stay; (b) all-risks sickness insurance cover’.

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have a right to residence on the territory of the EU or Switzerland. That right to residence needs to be ‘substantiated through the issue of a residence permit’, Article 2 Annex I AFMP. Nationals of either contracting party legally resident on the territory of the other have the right to be joined by their family members, irrespective of their nationality, Article 7(1)(d) AFMP. The only additional condition they need to fulfil, compared to the conditions laid down in Directive 2004/38, is to be able to provide for housing, which is considered normal for the place they reside in, Article 3(1) Annex I AFMP. Once in the host Member State, those family members have automatic access to the labour market as laid down in Article 7(1)(e) AFMP. Nationals of either contracting party, who are legally resident on the territory of the other, are to be treated without discrimination based on nationality on grounds of Article 2 AFMP. In addition, the AFMP contains a standstill clause that prohibits the introduction of ‘any further restrictive measures vis-à-vis each other’s nationals in fields covered by this Agreement’, Article 13 AFMP.

7.3.2 Turkish Nationals under the Ankara Agreement The Association Agreement with Turkey, also called the Ankara Agreement (AA), aimed to prepare Turkey for future accession to the EU. To achieve that aim, the free movement of goods, workers, services, and freedom of establishment between the parties were to be set up progressively.41 While free movement of goods was partially realised as planned by establishing a Customs Union,42 due to changed economic and political realities in the 1980s, there was no appetite to establish the free movement of workers.43 Instead, the Association Council, the decisionmaking body of the association, adopted decisions granting rights to Turkish nationals and their family members who were already legally

41 42

43

See Arts. 10, 12, 13, and 14 AA. Decision 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union, 96/142/EC, OJ 1996 No. L35, 13 February 1996, pp. 1–46. The Custom Union is limited to industrial and processed agricultural products. Art. 36 of the Additional Protocol to the Ankara Agreement envisaged the establishment of free movement of workers by 1986. See, Additional Protocol, Brussels, 23 November 1970, and annexed to the Agreement establishing the Association between the EEC and Turkey and on measures to be taken for their entry into force (AP), OJ 1977 No. L361, 31 December 1977, pp. 60–117.

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  

resident on the territory of the Member States.44 Provisions of these decisions, which are sufficiently clear, precise, and unconditional, have a direct effect.45 While there is no substantive right to family reunification for Turkish workers or the self-employed in the AA, in recent years there have been a few cases in which Turkish workers and the self-employed have been successful in challenging the restrictive family reunification laws of some Member States.46 They have been able to do so by relying on standstill clauses existing in the Association acquis, namely Article 41 of the Additional Protocol (AP) on freedom of establishment and free movement of services, and Article 7 of Decision 2/76, which was replaced by Article 13 of Decision 1/80 on free movement of workers and their family members. These clauses prohibit the introduction of any new restrictions on the respective freedoms, including rules on family reunification. It is by virtue of these clauses that national courts of some Member States ruled that integration measures in the form of language tests constituted ‘new restrictions’ in the framework of the association law; hence, those could not be applied to Turkish nationals.47 Both standstill clauses have a direct effect;48 however, it is worth emphasising that they do not confer any specific rights on individuals. They operate as quasi-procedural rules, which help to determine ratione temporis, which law of a Member State needs to be referred to for assessing the legal situation of a Turkish national who wants to exercise one of the freedoms covered by these clauses.49 The standstill clauses aimed to freeze the relevant legal framework on the day they entered into force. This was 20 December 1976 for Article 7 of Decision 2/76 on 44

45 46

47

48

49

The first decision in this area is Decision 2/76 of the Association Council on the implementation of Art. 12 of the Ankara Agreement. It was replaced by Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, not published in the Official Journal. Case C-192/89, Sevince ECLI:EU:C:1990:322. See Case C-138/13, Naime Dogan v. Bundesrepublik Deutchland ECLI:EU:C:2014:2066; Case C-561/14, Genc ECLI:EU:C:2016:247; Case C-652/15, Tekdemir ECLI:EU:C:2017:239; Case C-123/17, Yön ECLI:EU:C:2018:632 and Case C-89/18, A ECLI:EU:C:2019:580. In the Netherlands, the issue was settled in 2011 with the judgement of the Centrale Raad van Beroep (CRvB), the highest court on some administrative matters such as social security. See CRvB 16 August 2011, ECLI:NL:CRVB:2011:BR4959. See also, N. TezcanIdriz, ‘Dutch Courts Safeguarding Rights under the EEC–Turkey Association Law’ (2011) 13(2) European Journal of Migration and Law, 219–239. Sevince, note 45, paras 18 and 26; Case C-317/01, Abatay and Others ECLI:EU: C:2003:572, paras. 58–59; Case C-228/06, Soysal ECLI:EU:C:2009:101, para 45. Case C-16/05, Tum and Dari ECLI:EU:C:2007:530, para 55.

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workers, which applied until 1 December 1980, when it was replaced by Article 13 of Decision 1/80.50 For Article 41 AP this date was 1 January 1973. For Member States that joined the EU at a later date, the relevant reference dates are those of their accession to the EU. After those reference dates, Member States were allowed to keep existing rules and obstacles in place or lift them. They are, however, not allowed to make them stricter by introducing new obstacles to entry and residence. Once an obstacle is lifted, it may not be reintroduced.51 Some examples of ‘new restrictions’ introduced by Member States in recent years are stricter immigration rules for those seeking entry to exercise their freedom of establishment, as the UK tried to do,52 introducing work permits,53 and visa requirements54 for Turkish service providers, as was the case in Germany, and increasing the fees charged for issuing and extending residence permits in the Netherlands.55 While standstill clauses in EU law are in principle absolute, in the context of the Association framework with Turkey, the Court changed course in the Demir case and introduced the possibility to derogate from them. These derogations can be justified on public policy, public security, and public health grounds, as well as on the ground of an overriding reason in the public interest, as long as they respect the principle of proportionality.56 In the family reunification cases it delivered so far, the Court ruled that the ‘prevention of forced marriages’,57 ‘achieving successful integration’,58 and ‘efficient management of migration flows’59 may constitute overriding reasons in the public interest; however, the contested German and Danish laws were found to violate the standstill clauses for not being proportionate. Overall, concerning the application of the standstill clauses, one could argue that what the Court gave with one hand by interpreting the scope of the clauses broadly, it took with the other by 50

51 52 53 54 55 56 57

58

59

For the relationship of these two clauses, see Case C-123/17, Yön ECLI:EU:C:2018:632, para 48. Joined cases C-300/09 and C-301/09, Toprak and Oguz ECLI:EU:C:2010:756. Case C-16/05, Tum and Dari ECLI:EU:C:2007:530. Case C-37/98, Savas ECLI:EU:C:2000:224. Case C-228/06, Soysal ECLI:EU:C:2009:101. Case C-92/07, Commission v. the Netherlands ECLI:EU:C:2010:228. Case C-225/12, C. Demir v. Staatssecretaris van Justitie ECLI:EU:C:2013:725, para 40. Case C-138/13, Naime Dogan v. Bundesrepublik Deutchland ECLI:EU:C:2014:2066, para 38. Case C-561/14, Genc ECLI:EU:C:2016:247, para 55; and Case C-89/18, A ECLI:EU: C:2019:580, para 33. Case C-652/15, Tekdemir ECLI:EU:C:2017:239, para 39; and Case C-123/17, Yön ECLI: EU:C:2018:632, para 77.

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introducing the possibility to derogate from them on the ground of ‘an overriding reason in the public interest’.60 However, it should be noted that the application of the standstill clauses is still very important, particularly in the case of Turkish nationals who reside in Member States to which the EU migration law for third-country nationals, as introduced hereunder, does not apply,61 namely Denmark, Ireland, and previously the UK. The standstill clauses led to the application of a patchwork of rules for the family members of Turkish workers and the self-employed across different Member States of the EU. They apply in cases where Member States have made family reunification rules stricter after the reference dates mentioned here, which is the case for most of the ‘old’ Member States.62 While prior to Demir it was clear that those were ‘new restrictions’ violating the standstill clauses, some of these rules can now be justified if found to pursue ‘an overriding reason in the public interest’ and if they are proportionate. It is now for the national courts of Member States and ultimately for the CJEU to establish whether that is the case or not. To recapitulate, international agreements that grant family reunification rights to TCNs are limited to the EEA and AFMP with Switzerland. The rights granted under these agreements are almost the same or come very close to the rights enjoyed by Union citizens. Norway, Iceland, Liechtenstein and Switzerland are small and rich European states, with shared history and culture. Some of them could have already been part of the EU, if it were not for negative popular referenda.63 The peculiar situation of Turkish nationals is due to the legal framework established by the Association Agreement, which ‘has the objective of bringing the situation of Turkish nationals and citizens of the Union closer together’.64 The result is a somewhat privileged status for Turkish nationals, placing them in between EU/EEA citizens and unprivileged TCNs.

7.4

Third-Country Nationals under Secondary EU Law

The rights of TCNs, without the privilege to derive rights from EU citizens or international agreements between the EU and third-countries, 60

61 62 63

64

See, N. Tezcan-Idriz, ‘Family Reunification under the Standstill Clauses of EU–Turkey Association Law: Genc’ (2017) 54(1) Common Market Law Review, 280. Ibid. See on the situation, for example, in the Netherlands, Section 8.2 by Kolbaşı-Muyan. Accession to the EU was rejected by Norwegian people in two popular referenda in 1972 and 1994 and by Swiss people in 1997 and 2001. Case C-92/07, Commission v. the Netherlands ECLI:EU:C:2010:228, para 67.

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are laid down in directives. Their rights thus flow from secondary legislation, which has the aim to harmonise national legislation instead of providing TCNs rights directly.65 This is important from a constitutional point of view.66 The main difference is that Union citizens are exercising a constitutional right to free movement,67 even though it is one that is to be ‘exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’.68 As explained in Section 7.2, once Union citizens (as well as EEA and Swiss nationals) fulfil the right to residence in a host Member State, they also have the right to be joined by their family members. For TCNs, this right is subject to authorisation by the host Member State in line with the EU rules described in Section 7.4.1. These rules give both the EU and national authorities ‘some discretion to determine the terms and conditions for entry and stay of foreigners’.69 How they use that discretion, i.e. for whom the process is made easier and for whom more difficult or impossible reveals their perception of the ‘other’. As will be described, there are some remarkable similarities between the set of rules for EU citizens and TCNs as far as the privileges attached to economic activity, wealth, and the prospects thereto based on qualifications are concerned.

7.4.1 The Family Reunification Directive: Benchmark for Unprivileged TCNs Despite all its shortcomings, the adoption of the Family Reunification Directive (FRD) was the most important step towards ensuring a family life for TCN migrants in the EU. Under FRD, once the conditions are fulfilled, Member States must admit the family members of a legally residing TCN. With the adoption of the Directive, a conditional right to family reunification has been included in EU law, and thereby within the purview of the Commission and the CJEU, which means that derogations from the right to family reunification under the Directive are to be interpreted restrictively.70 Member States can 65

66

67 68 69 70

D. Thym, ‘“Citizens” and “Foreigners” in EU Law. Migration Law and Its Cosmopolitan Outlook’ (2016) 22(3) European Law Journal, 299. See Case 294/83, Parti écologiste “Les Verts” ECLI:EU:C:1986:166, para 23, for the constitutional character of the Treaties, and Case C‑61/94, Commission v. Germany ECLI:EU: C:1996:313, para 52 for the status of international agreements. Thym, ‘“Citizens” and “Foreigners” in EU Law’, p. 299. Last indent of Art. 20(2) TFEU. Thym, ‘“Citizens” and “Foreigners” in EU Law’, p. 316. See, the Commission’s Communication providing guidance for application of Directive 2003/86/EC on the right to family reunification, COM(2014) 210 final, Brussels, 3 April 2014, p. 11.

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reject an application only if the conditions laid down in the Directive are not fulfilled or on grounds of public policy, public security, or public health in accordance with Article 6(1) FRD. National rules may no longer deviate from these EU rules. The Directive covers family reunification with the nuclear family, i.e. the sponsor’s spouse and the minor children of the sponsor or spouse in Article 4(1) FRD. Other family members ‘may’ be authorised to join the sponsor. However, there are caveats concerning the members of the nuclear family too. Children who are over 12 years old and arrive independently from the rest of the family might be subject to verification to see if they meet the integration conditions prescribed by national law, if the law provided for it at the time the directive was implemented, which was the case in no Member State to which the Directive applies.71 Also regarding reunification with one’s spouse, Member States may require the sponsor and the spouse to be at least 21 years old at the time the application is lodged.72 As to the most important conditions laid down in the Directive, the sponsor needs to have a residence permit for a year or more with ‘reasonable prospects of obtaining the right to permanent residence’,73 ‘normal’ accommodation, comprehensive sickness insurance for himself and his family, and ‘stable and regular resources’74 sufficient to maintain his/her family.75 In addition, Article 7(2) FRD says that ‘Member States may require third country nationals to comply with integration measures, in accordance with national law’. The following paragraph to Article 7(2) FRD, stipulating that integration measures with regard to refugees ‘may only be applied once the persons concerned have been granted family reunification’, implies that other TCNs could also be subject to integration measures before joining their family member in the EU.76

71

72

73 74

75 76

This article thus functions as a stand-still clause and prevents Member States from introducing such requirements in the future. Denmark is the only Member State that has such rules in place. See, Case C-561/14, Genc ECLI:EU:C:2016:247. See Art. 4(5) Directive 2003/86/EC and Case C-338/13, Marjan Noorzia ECLI:EU: C:2014:2092, para 16. Art. 3(1) Directive 2003/86/EC. The requirement of ‘stable and regular resources’ needs to be applied in line with the CJEU’s interpretation in Case C-578/08, Chakroun ECLI:EU:C:2010:117. Art. 7(1) Directive 2003/86/EC. These pre-departure integration requirements have also been accepted by the CJEU. See Case C-153/14, K and A ECLI:EU:C:2015:453.

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In addition, Member States may require the sponsor to have lawfully resided on their territory ‘for a period not exceeding two years’, before they allow the family to join.77 If already provided by national law at the date of the implementation of this Directive, Member States, according to Article 8(2) FRD ‘may provide for a waiting period of no more than 3 years between the submission of the application for family reunification and the issue of a residence permit to the family members’. While many Member States have transposed the option under the first paragraph, only Austria and Croatia have transposed the option under the second paragraph.78 Once family members join the sponsor, they are entitled to access to education and employment. However, in line with their laws, Member States may decide to postpone access to their employment markets for up to a year.79 Each additional condition for family reunification means extra discretion for Member States. How national authorities choose to use that discretion in the case of each nationality or category of people provides clues regarding that nationality’s or category’s place on the ‘otherness’ spectrum. One area in which Member States have particularly wide discretion is under the optional clause of Article 7(2) FRD, which gives them the possibility to require compliance with integration measures. The fact that the Directive does not define what those integration measures are gives Member States leeway into the kind of requirements they impose under this provision. These requirements can work as selection mechanisms in line with each Member State’s specific immigration policies. However, this leeway is not unlimited. The CJEU established that these measures ‘must be aimed not at filtering those persons who will be able to exercise their right to family reunification, but at facilitating the integration of such persons within the Member States’.80 Moreover, these measures need to be proportionate and take account of ‘specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health of a sponsor’s relevant family 77 78

79

80

Art. 8(1) Directive 2003/86/EC. See the Commission’s 2019 Report on the implementation of the Directive 2003/86/EC, p. 9. Art. 14(2) Directive 2003/86/EC; The Member States that have chosen to apply this option are Belgium, Bulgaria, Cyprus, Greece, Luxembourg, and Malta. See the Commission’s 2019 Report on the implementation of the Directive 2003/86/EC, p. 14. Case C-153/14, K and A ECLI:EU:C:2015:453, para 57. For the annotation of the case see, M. Jesse, ‘Integration Measures, Integration Exams, and Immigration Control: P and S and K and A’ (2016) 53(4) Common Market Law Review, 1065–1087.

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  

members’.81 In short, Member States have discretion in determining the type of integration measures they choose, however, when challenged, that choice is subject to the scrutiny of the CJEU. The most contested integration measures are those that must be fulfilled before an entry visa is granted to the family member of the sponsor in the family member’s country of origin, the so-called predeparture integration requirements. While laws of many states provide for different types of integration courses once family members join the sponsor,82 there are only four states that require compliance with predeparture integration requirements; Austria, Denmark,83 Germany, and the Netherlands. To be able to join the sponsor, family members need to prove basic language proficiency, as well as take a civic integration exam in the case of Denmark and the Netherlands. Costs for the study materials and the exams are to be borne by family members. Traveling to the Embassies where these exams take place, including the costs of these exams, can constitute a considerable hurdle for people coming from less developed countries.84 In all four countries that apply pre-departure integration requirements applicants from wealthy and ‘majority-white’ countries are excluded.85 To look in more detail at who is exempted from the Dutch integration requirements for example, these are EU citizens, EEA nationals, Swiss, Americans, Australians, Canadians, New Zealanders, Japanese, and South Koreans. Turkish nationals were exempted only after the Dutch courts decided those measures violated the standstill clauses in the EU– Turkey Association law. In short, the list seems to make a distinction between wealthy/Western and poor/non-Western immigrants, for which

81 82

83

84 85

Case C-153/14, K and A ECLI:EU:C:2015:453, paras 56 and 58. In France family members sign ‘The Republican integration contract’, which commits them to diligently follow the prescribed training for a year. In other countries, such as Estonia and Latvia, the states provide for free of charge language courses. See, European Commission, ‘EMN Synthesis Report for the EMN Focused Study 2016 – Family Reunification of Third-Country Nationals in the EU plus Norway: National Practices’, Migrapol EMN [Doc 382] (April 2017), p. 27. It should be noted that Denmark is not covered by the FRD, which means that it is not subject to the above-mentioned scrutiny of the CJEU. However, CJEU scrutiny applies when Danish rules come within the scope of other relevant areas of EU law, such as EU– Turkey Association law. See, Case C-561/14, Genc ECLI:EU:C:2016:247. The costs of the exams range from 75 to 150 euros. See EMN Synthesis Report, p. 26 R. Schweitzer, ‘A Stratified Right to Family Life? On the Logic(s) and Legitimacy of Granting Differential Access to Family Reunification for Third-Country Nationals Living within the EU’ (2015) 41(13) Journal of Ethnic and Migration Studies, 2139.

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it was heavily criticised by Human Rights Watch.86 The detrimental effects of these discriminatory integration requirements on Turkish nationals are shown elsewhere in this volume.87 Academics were also critical of these new policies and pointed out that they aim at filtering migrants and raising barriers to immigration,88 rather than aiming at facilitating integration. Statistics seem to confirm these criticisms, as the introduction of pre-departure tests abroad led to a significant reduction in the number of applications for family reunification visas.89

7.4.2 Highly Qualified Migrants: Privileged Applicants Certain categories of TCNs, such as those admitted to the territory of a Member State for highly qualified employment under the EU’s Blue-Card Directive,90 intra-corporate transferees under the ICT Directive,91 or as researchers under Recast Researchers Directive,92 enjoy broader and more immediate rights to equal treatment. For example, granting residence permits to family members is not conditional upon the requirement of the sponsor ‘having reasonable prospects of obtaining the right of permanent residence and having a minimum period of residence’.93 Secondly, integration measures mentioned in Article 7(2) FRD can only

86

87 88

89

90

91

92

93

See the Report by Human Rights Watch, ‘The Netherlands: Discrimination in the Name of Integration’, 13 May 2008, available online at www.hrw.org/report/2008/05/13/nether lands-discrimination-name-integration/migrants-rights-under-integration (last accessed 16 June 2020). See Sections 8.3 and 8.4 by Kolbaşı-Muyan. See Jesse, ‘The Selection of Migrants through Law’; and G. Ruffer, ‘Pushed beyond Recognition? The Liberality of Family Reunification Policies in the EU’ (2011) 37(6) Journal of Ethnic and Migration Studies, 935–951. F. I. Klaver and A. W. M. Odé, Civic Integration and Modern Citizenship: The Netherlands in Perspective (Amsterdam: Europa Law Publishing, 2009), p. 75. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ 2009 No. L155, 18 June 2009, pp. 17–29. Directive 2014/66/EU of 15 May 2014 on the conditions of entry and residence of thirdcountry nationals in the framework of an intra-corporate transfer, OJ 2014 No. L157, 27 May 2014, pp. 1–22. Directive 2016/801/EU of 11 May 2016 on the conditions of entry and residence of thirdcountry nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, OJ 2016 No. L132, 21 May 2016, pp. 21–57. Art. 15(2) of the Blue Card Directive; Art. 19(2) of the ICT Directive; Art. 26(2) of the Recast Researchers Directive.

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  

be applied after family reunification has occurred in the Member State of residence of the sponsor.94 In other words, these directives do not allow for the application of pre-departure integration measures. Thirdly, the ICT and the Recast Researchers Directives, which were adopted relatively more recently, provide for a 90-day period for Member States to grant family members their residence permits once all conditions are fulfilled. Furthermore, where the application for the family members has been submitted at the same time with the researcher or the intra-corporate transferee, the Member States need to process both applications simultaneously.95 This enables the whole family to move together to the host Member State. The Blue Card Directive provides for a six-month period to grant family members their residence permit. However, under the Commission’s new proposal,96 the Blue Card Directive also provides for a 90-day processing period. In addition, both short term and long term intra-EU mobility is facilitated under these directives.97 For instance, Blue Card holders and their families can move to a second Member State after 18 months of legal residence in the first Member State.98 TCNs who do not fall under the scope of these directives need to legally reside for five years in a Member State and become permanent residents under the Long Term Residence Directive99 before considering to move to a second Member State. These few examples clearly show the difference in terms of the rights granted to these specific groups under the three directives mentioned and other TCNs residing legally in the EU. If the Commission’s proposal for a new Blue Card Directive is adopted,100 the difference will grow even bigger. Blue Card holders will be able to obtain permanent

94

95 96

97

98 99

100

Art. 15(3) of the Blue Card Directive; Art. 19(3) of the ICT Directive; and Art. 26(3) of the Recast Researchers Directive. Art. 19(4) of the ICT Directive; and Art. 26(4) of the Recast Researchers Directive. European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment’, COM(2016) 378 final, 7 June 2016. For example, see Chapter V of the ICT Directive; and Chapter VI of the Recast Researchers Directive. Art. 18(1) of the Blue Card Directive. Directive 2003/109/EC concerning the status of third-country nationals who are longterm residents, OJ 2004 No. L16, 23 January 2004, pp. 44–53. See European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment’, COM(2016) 378 final, 7 June 2016.

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residence status by legally residing and working in a Member State for three years instead of the five years required for other TCNs.101

7.5 Conclusion: Hierarchies of Privilege and ‘Othering’ Table 7.1 provides a matrix of conditions and privileges of the three categories of migrants introduced in this chapter. What will be apparent from this table is that there are relatively similar privileges granted to wealthy, economically active, and/or educated people in all categories alike, despite the distinct legal regime applicable to each category. This chapter attempted to demonstrate how the ‘us’ versus ‘others’ dynamic is recreated at the EU level by looking at the family reunification laws and integration requirements that apply to different categories of people. It is not only the ‘TCN others’ that are ‘othered’. EU law has created a hierarchy of statuses within every category, i.e ‘nationals’, ‘EU citizens’, as well as ‘TCNs’, which means one is able to find ‘others’ at the bottom of the hierarchy of each category. The ‘others’ among the Union citizens are the poor and the unemployed; those that are seen as a ‘burden’ on the host Member States. While this category is ‘othered’ intentionally, there are also the ‘static’ EU citizens who are ‘othered’, arguably, unintentionally. While the former category are the ‘unwanted’ and ‘undeserving’ EU citizens, EU law is indifferent to the plight of the latter. It does not apply to them because they are in a ‘purely internal’ situation, in which EU law does not apply. EU law needs a cross-border element to apply in free movement cases. From the point of view of these ‘static’ citizens, they are ‘othered’: EU law is the reason why nationals of other Member States are in a more privileged position than they are in their own country. The closer (culturally and geographically) and richer a country is to the EU; the more extensive family reunification rights its nationals have. The EEA and Swiss nationals are at the top of the hierarchy of rights, to be followed by Turkish nationals, who might enjoy rights to family reunification in some cases by virtue of the application of the standstill clauses on free movement of workers, services, and establishment. No rights to family reunification can be derived from other agreements signed between the EU and third states.

101

Ibid., p. 18.

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Table 7.1 Hierarchies of privilege and ‘othering’ Category I

Category II

Category III

EU citizens, EEA & Swiss citizens

Turkish citizens

Third Country Nationals

EU Treaties, Secondary EU Law, and International Agreements

International Agreements and Secondary EU Law

Level 1 They Are ‘Us’ Privileged

- Economically active - Self-sufficient - Students with sufficient resources

- Economically active Turkish nationals who have an unconditional right due to the application of the standstill clauses

- Intra-Corporate Transferees - Highly qualified workers - Researchers

Level 2 They Are ‘Almost Us’ Somewhat Privileged

- Workers in precarious employment - Temporarily unemployed - Students with temporary financial difficulties

- Economically active Turkish nationals whose right is conditional but more favourable than under the FRD due to the standstill clauses - Those who are able to fulfil the conditions of the FRD

- Those who are able to fulfil the conditions of the FRD

Level 3 They Are the ‘Others’ Not Privileged

- Unemployed for more than 6 months - Economically inactive & not self-sufficient - Static EU citizens (reverse discrimination)

- Those who are neither able to rely on the standstill clauses nor able to fulfil the conditions of the FRD

- Those who are not able to fulfil the conditions of the FRD

Secondary EU Law

. 



Since the EU believes in the positive effect of family reunification on the integration of migrants, it has adopted a general FRD that grants rights to all. However, Member States’ desire to control and filter the incoming family members resulted in the inclusion of optional clauses, which enable Member States’ ‘othering’ practices also within the framework of the FRD. Those that are targeted and hit by these practices are those who are seen as incapable of ‘integrating’: the poor, the (mentally and physically) weak, and the vulnerable. There is a stark contrast between the rights granted to ‘wanted’ migrants, who are highly qualified, and those who are not. However, as illustrated in the preceeding sections, that contrast also exists among different categories of Union citizens. Ultimately, those who are not able to earn a living and are poor are the ‘unwanted’ in each category. The fact that each category has its ‘others’ does not mean they are comparable. The category of the most privileged have a right to family reunification that is automatically linked to their right to residence. Moreover, the circle of ‘family members’ that enjoys the right to family reunification is broader: it includes dependent parents and children who are under 21 or dependants, as can be seen in Article 2(1)(c) of the Citizen’s Directive and Article 3(2)(a) Annex I AFMP. Most important of all, nationals of EU Member States enjoy a constitutional right to free movement which is directly linked to their ‘fundamental status’102 as Union citizens. These rights are scrupulously safeguarded by the CJEU. The Court plays a crucial role in ensuring the effectiveness of the rights granted to TCNs too, irrespective of whether they flow from international agreements or secondary law. The developing case law on the FRD is a source of optimism in this regard, as it seeks to prevent Member States from undermining the underlying aim of the directive by limiting their discretion and providing a strict interpretation of the optional clauses.103 Less discretion for Member States ultimately means less space for their ‘othering’ practices. 102 103

Case C-184/99, Grzelczyk ECLI:EU:C:2001:458, para 31. K. Groenendijk, and T. Strik, Family Reunification in Germany, Netherlands and the EU since 2000. Nijmegen Migration Law Working Papers Series 2018/02 (Nijmegen: Radboud Universiteit Nijmegen, 2018), p. 10.

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8 Alienation of ‘Second Generation Turkish Dutch’ in the Name of ‘Integration’ Family Reunification Policies in the Netherlands

       ş  -     

8.1 Introduction ‘We realise that the distance between us and the Dutch is growing, just as we think we are getting closer.’ This comment, made by a secondgeneration Turkish immigrant in the Netherlands, is the starting point of this chapter. The legal ‘othering’ not only targets foreigners and immigrants, but also the descendants of immigrants who may well be citizens of the country in which they reside. With 55 years of family history in the Netherlands, the difference between the equality enjoyed by the respondent according to the letter of the law and that witnessed in daily life feed these feelings of exclusion due to the many administrative and legal hurdles that must be overcome and have the effect of alienation. And he is not alone. The family reunification process involves many practices that alienate second-generation1 Turkish immigrants2 in the Netherlands, which will be referred to as Second Generation Turkish Dutch (SGTD) in this chapter. This chapter looks at the application of family reunification regulation in the Netherlands and how it alienates the SGTD, whether intentionally or unintentionally. Concerns over the implementation of the family reunification rules in the Netherlands have been voiced not only by

1

2

‘Second generation’ in this chapter refers to immigrants who came to the Netherlands in their early childhood (before the age of 10) and the children of immigrants who were born and raised in the Netherlands. The terms ‘Turkish’, ‘Turkish’ immigrant, community or origin, or ‘Turks’ are used in this study to refer to all ethnic groups originating from Turkey. Citizenship is not considered as a reference point in the study, since most of the Turkish origin people residing in the Netherlands have dual citizenship.



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. 



experts but also SGTD sponsors. The analysis is based on the results of an ethnographic field research conducted in the Netherlands between October 2014 and October 2015.3 In addition to the participant observations, 69 semi-structured in-depth interviews were conducted for the garnering of additional data.4 It is argued in this chapter that the family reunification measures undertaken in the name of integration and inclusion and their operation in daily administrative practices actually lead to an opposing result, with the perceived discrimination, alienation, and construction of ‘othering’ being felt even among those who did not immigrate themselves, but who are the children or grandchildren of first and second generation Turkish immigrants. SGTD sponsors feel the most alienation due to their unfulfilled expectations of belonging. This chapter concludes that the discomfort with their legal situation at a certain point becomes secondary to the feelings of exclusion they feel in having to overcome the wide range of administrative and legal hurdles that they feel alienate them. In doing so, this chapter emphasises the phenomenon of perceived discrimination: its effects on alienation and the construction of ‘othering’, and a time perspective to the legal ‘othering’ processes, given the generational effects of ‘othering’. To reflect upon the alienation and perceived discrimination felt by the SGTD sponsors throughout the family reunification process, this chapter analyses the institutional and bureaucratic application of the policy, the perceptions of the SGTD sponsors regarding the requirements and their implementation, and finally, the impact of their experience in the family reunification process on their integration. The study begins by highlighting the existing legal concerns about the implementation of the policy for Turkish immigrants residing in the Netherlands, focusing on the prevention of court judgments, the restrictive administrative interpretations of the court judgments, and the drawn-out legal processes. The second

3

4

The field research in the Netherlands was carried out as part of a PhD research with funding from the Scientific and Technological Research Council of Turkey (TUBITAK, BIDEB 2214-A). During the ethnographic field research, semi-structured in-depth interviews were conducted with 69 interviewees in total, including 45 SGTD sponsors with spouses from Turkey after 2006 (20 women and 25 men), 14 representatives of Turkish-origin Dutch umbrella NGOs, 4 Turkish immigrant social workers, and 6 lawyers with expertise in family reunification and/or EEC–Turkey association law.

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

‘   ’

section details the perceptions of the SGTD sponsors of the family reunification requirements related to income, the taking of the civic integration exam abroad and the courses in the Netherlands, the high administration fees, and the age requirements. The final section focusses on the negative impact of the family reunification policy on the integration of SGTD sponsors.

8.2 Bureaucratic Alienation: Family Reunification for Turkish Citizens in the Netherlands This section will look at the ‘othering’ endured by SGTD sponsors from an institutional point of view within the Dutch family reunification policy. Particularly, this section underlines the legal context of the family reunification process, focusing not only on the applicable legislation and regulations, but also on the difficulties experienced by the SGTD sponsors during the implementation of the rights of Turkish sponsors in the Netherlands. As highlighted in Chapter 7, the European Union (EU) is also involved in the regulation of family reunification processes, which, when coupled with the local regulations, results in a complex legal framework, as summarised in Table 8.1. The national integration requirements governing family reunification were introduced in the Netherlands in the mid-1990s as a means of controlling migration from outside the EU.5 At the time of the drafting of the restrictive family reunification requirements introduced in 2004,6 Turkish citizens were included under the scope of the new law.7 This meant that the complex legal framework in place for Turkish citizens in the EU, including their rights, was ignored. One of the interviewees8 who worked as a lawyer in this field complained about how politics dominated legal rights. The Turkish lawyers who took part in the field research

5

6

7

8

S. Bonjour and M. Vink, ‘When Europeanization Backfires: The Normalization of European Migration Politics’ (2013) 48(4) Acta Politica, pp. 396–397. Memorandum of Explanation to the Decree of 29 September 2004 on the amendment of the Aliens Decree 2000 (Vb 2000) in connection with the implementation of Directive 2003/86/EC and certain other issues regarding family reunification, family formation and public policy (Staatsblad. 2004), p. 496. The minimum age requirement of 21 years old and an income requirement of 120 per cent of the minimum wage were introduced for family formation within the context of new law. Expert interviews were conducted with six Turkish-origin Dutch lawyers who had practiced law for more than five years and who were focused mainly on immigration law, more specifically EEC–Turkey association law and family reunification.

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EU citizen

Resident Third Country Nationals (TCN)

Legal Basis

Directive 2004/ 38/ECa

Directive 2003/86/EC,b Directive 2003/109/ECc

Rights

Freedom of Movement EU Internal Market EU

Family reunification Long-term residence Immigration and integration Shared competence

Policy Concerns Competence



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Table 8.1 Legal context of family reunification according to the legal status of sponsors

a

Turkish citizen European Economic Community (EEC)Turkey association law,d Directive 2003/86/EC Standstill and non-discrimination Family reunification Immigration and Integration Shared competence with a larger discretion of the EU

Static EU citizens (Nationals) National Law

Family reunification National immigration National

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and to reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC, OJ No. L 158/77, 30 April 2004. b Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ No. L 251, 3 October 2003. c Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents, OJ 2004. No. L16/44, 23 January 2004. d The term EEC–Turkey association law contains an Agreement establishing an Association between the European Economic Community and Turkey (Ankara Agreement) signed at Ankara on 12 September 1963 OJ L217, 29 December 1963, an Additional Protocol, signed at Brussels on 23 November 1970, and annexed to the Agreement establishing the Association between the European Economic Community and Turkey OJ No. L361, 31 December 1977, the Association Council Decisions and jurisprudence of the European Court of Justice interpreting these legal instruments.



‘   ’

stressed that this constituted a violation of the rights of Turkish citizens under the EEC–Turkey association law, and claimed that the regulations were against the law, while highlighting the role of the Immigration and Naturalisation Service (IND): Lawyer 3: What was expected from the IND and the Ministry was a proactive approach. They have hundreds of legal experts. While preparing new legislation, they take the opinions of experts in the field. For example, I know that despite the negative response, they put it into practice for Turkish citizens. In other words, the code, despite being against the law, was introduced on purpose. I wish the Ankara Agreement had been taken into consideration as an international agreement during the drafting of the code. We have the impression that there was no such thing until now. Now we have to ensure adherence to the Ankara Agreement through court decisions. In brief, we try to reenter from the back door rather than front one.

This one statement points to a clear political decision to ignore legal advice warning of the effects of the EEC–Turkey association law that resulted in Turkish citizens having to enter into a legal battle with the Dutch government to ensure their individual rights under the EEC– Turkey association law (see Table 8.2). As summarised in Table 8.2, Turkish citizens managed to acquire most of their family reunification rights but faced many obstacles in their legal struggle to prevent the illegal implementation of the regulation. These obstacles can be categorised under three headings: (1) preventions of court judgments, (2) restrictive administrative interpretation of individual rights; and (3) drawn-out lengthy legal processes.

8.2.1 Prevention of Court Judgments: Well-Timed ad hoc Residence Permits Aside from the EEC–Turkey legal framework being overlooked at the time the local legislation and policies were being established, as discussed in Section 8.2, the Dutch government also had active policies in place that prevented courts from rendering judgments based on this legal framework. During the interviews, the manoeuvres of the Dutch institutions to deny the rights of Turkish citizens were often underlined. The lawyers who participated in the field research gave examples of their experiences with the IND in the implementation of the age requirement, stating that the IND would

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Legal Basis Age Requirement Income Requirement

Civic Integ. Exam in the Country of Origin Civic Integ. Exam in NL



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Table 8.2 Family reunification regulations according to the legal status of sponsors in the Netherlands (in 2019)

MVV Visae Fees for Residence Permitf a

EU citizens

Dutch citizens

Turkish citizens

TCNs

Directive 2004/ 38/EC 18

Under the scope of Dutch law 21

Directive 2003/86

16 hours of work per week NO

100% of min. income (Chakroun C-578/08)

NO (2011)c

YES

NO

100% of min. income €1,635.60 YES (exceptions available)b YES

EEC–Turkey Association Law Directive 2003/86/EC 18 – Administrative change by IND in 2015 100% of min. income (Chakroun C-578/08)a

YES

NO €57

YES €57

NO (2011) Dutch Court Decisiond YES €57 €66 with MVV

21

YES €171

Case C-578/08, Rhimou Chakroun v. Minister van Buitenlandse Zaken ECLI:EU:C:2010:117. According to Annex 2 of Art. 2.2 of the Aliens Regulations 2000 (Vv 2000), the marriage migrants with the citizenship of the EU and European Economic Area Member States, Australia, Canada, Japan, Monaco, New Zealand, South Korea, the United States of America, and Vatican City are exempted from the MVV visa requirement. c Dutch Parliamentary Papers II 2011–2012, 31 143, No. 89. d Dutch Central Appeals Tribunal (CRvB), 16 August 2011, ECLI:NL:CRVB:2011:BR4959. e Under Art. 3.71(1) of the Vb 2000, if the foreign national has no valid authorisation for temporary stay (MVV), an application for a fixed-term residence permit is rejected. MVV visa requirement is associated with the citizenship of the marriage migrant. f The fees for the family reunification of Turkish citizens have been announced on the IND website: https://ind.nl/en/pages/turkishcitizens-and-their-family-members.aspx?pk_campaign=spouse&pk_kwd=turkish-citizens, last accessed 13 October 2019. b



‘   ’

refuse family reunification requests from Turkish sponsors with partners below the age of 21, stating explicitly their concern with the failure to meet the age requirement. When the applicant appealed against the refusal of the IND, the IND withdrew its refusal to grant a permit immediately prior to the official trial date at the Dutch Court without providing any justification for this last-minute 180 degree-turn: Lawyer 1: When the IND gave its refusal decision, they made detailed references to past decisions of the European Court of Justice (ECJ) or other courts . . . When they reversed their decision after an objection was raised in court, they stated only that their rejection of the application had been withdrawn. A decision in two sentences . . . But why? What convinced you to reverse the decision? You cannot find answers to these questions. In legal terms, it is something serious. It is in contravention to the fundamental principles of the law.

The lawyers underlined the difficulty in drawing conclusions from these administrative decisions when the age requirement for family reunification is 18 years, not 21 years, for all Turkish citizens. They expressed that the judgments could also be interpreted as an outcome of an individual assessment by the Court. One of the interviewees, a lawyer, said that just before the trial, the IND withdrew its negative decision on the application of family reunification, which was based on the stated age requirement. She concluded that the refusal had been withdrawn to prevent a court judgement being made that would set a precedence. In summary, it would appear that the IND prevents court judgments, and relies on a system of ex gratia decisions in order to avoid a court ruling that sets a precedent for the implementation of the rights of Turkish citizens which would eventually lead to less restrictive family reunification rules. The Turkish lawyers interviewed in the Netherlands said that they had applied to the IND with 40 similar cases of Turkish citizens being exempt from the age requirement of 21 years for family reunification under an administrative decision of the IND in 2014. The legal experts participating in the present study highlighted similarities between the approach of the IND toward the implementation of authorisation of a temporary stay entry visa (Machtiging tot Voorlopig Verblijf in Dutch, abbreviated as MVV) and its stance on the age requirement of 21 for Turkish citizens. In other words, the IND sought actively to prevent ‘precedent’ judgments to uphold the formal validity of the underlying legislation and policies.

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.  



8.2.2 Restrictive Administrative Interpretation of Individual Rights In addition to the prevention of court rulings, as explained in Section 8.2.1, Dutch administrative bodies also implement the judgments of the ECJ on the privileged position of Turkish citizens under the EEC–Turkey association law in a restrictive way. This forces individual applicants to yet again launch expensive lawsuits to challenge negative decisions, as the administration will only interpret exemptions for Turkish citizens on a case-by-case basis. The Dutch lawyers of Turkish origin participating in the research attributed this approach of the Dutch government to two main issues: The implementation of MVV for Turkish marriage migrants, and the reimbursement of the costs of Turkish citizens for the illicit implementation of the civic integration exam. First of all, according to the lawyer interviewees, the Dutch government interprets the Demir9 and Doğan10 judgments of the ECJ in a restrictive way while determining the legal process for the issuance of residence permits for Turkish marriage migrants. Contrary to the outcomes of these judgments, the scope of the exemption from the MVV requirement is only considered for self-employed Turkish citizens.11 As one interviewee stated, the lack of an MVV should not be considered the sole condition for the refusal of a family reunification application by Turkish citizens because of the ‘standstill clauses’ in the EEC–Turkey association law:12 Lawyer 3: Turkish citizens who want to obtain a residence permit for family reunification must wait in Turkey. Despite the judgements of the ECJ, the IND does not accept this . . . claiming that the Demir judgement of the ECJ is only valid for Turkish citizens who come as selfemployment. . . . The court judged in that case that you cannot today put down visa as a reason for refusal, since you did not do this in the past.13

9

10 11

12

13

Case C-225/12, C. Demir v. Staatssecretaris van Justitie ECLI:EU:C:2013:725, for some more insights into these judgments, see Section 7.3.2 by Idriz. Case C-138/13, Naime Doğan v. Bundesrepublik Deutchland ECLI:EU:C:2014:2066. For the implementation of the exemption see the IND document ‘Bağımsız çalışan olarak çalışmaya yönelik bir oturum izni almak istiyorsunuz ve Türk vatandaşlığına sahipsiniz’, available at https://ind.nl/Formulieren/3010.pdf, last accessed 29 July 2019. Standstill clauses are provisions stated in Art. 41(1) of the Additional Protocol and Art. 13 of Decision 1/80 of the Association Council of 19 September 1980 on the development of the association, not published in the OJ, that forbids the parties from worsening the conditions after their entry into force. Case C-225/12, C. Demir v. Staatssecretaris van Justitie ECLI:EU:C:2013:725.

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

‘   ’

Secondly, during the interviews the lawyers raised concerns over the restrictive administrative interpretation of the reimbursement of the expenses of Turkish citizens for the civic integration exam. One lawyer interviewee clarified the situation, stating that an administrative decision had been made to reimburse the expenses of Turkish citizens who took the civic integration exam abroad after a certain date, if they could prove their expenses, but not those from before that date. Accordingly, despite the admission of the ECJ that the implementation of the civic integration exam abroad for Turkish citizens was illegal, the reimbursement of expenses for exams taken only after a certain date led to feelings of discrimination and mistrust of Dutch institutions. In short, the IND makes a restrictive administrative interpretation of the exemption of Turkish citizens from the MVV visa requirement and the reimbursement of expenses of those who took the civic integration exam abroad. This is in direct contravention to the individual rights of Turkish citizens derived from the EEC–Turkey association law. The restrictive administrative interpretation of the court judgments makes it necessary to again raise the issue in court, again resulting in protracted bureaucratic processes to gain access to one’s rights, which will be elaborated upon in Section 8.2.3.

8.2.3 Excessive Length of Legal Proceedings The tactics of the IND mentioned in Sections 8.2.1 and 8.2.2, especially those leading indirectly to a need to apply to the court for individual cases, has the incidental side effect of prolonging the time needed for individual applicants to gain access to their rights. The legal waiting period for the initial assessment of applications by the IND could be considered reasonable. It was decreased from six months to three months in 2016. However, most of the Turkish respondents in the present study stated that they had to appeal, and some had to take the issue to court: Lawyer 1: Ok, I obtained my rights in the end, but how long does it take to obtain a judgement from the ECJ? Although you will gain your rights in the end, you would be dissatisfied in legal terms, as it would take approximately four years to obtain a positive legal decision. When you analyse the situation from a clients’ perspective, it is not a satisfactory result.

Most of the lawyers participating in the study said that, despite their knowledge of their rights, Turkish citizens may be reluctant to bring

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.  



administrative abuses of the family reunification regulations to court due to the duration of legal procedures involved. They exemplify this with the income requirement. All the lawyers interviewed referred to the implementation of the income requirement of 100 per cent of minimum wage14 as unjust for Turkish citizens. They suggest that this should have been 70 per cent for Turkish sponsors based on the rules in place between 1993 and 200115 and the standstill clauses in the association law. They added that, despite preparing for cases on the income requirement, they could not find a single client willing to file court proceedings: Lawyer 6: They (Turkish sponsor) ask for a guarantee of six months for the duration of the case, to which I give negative answer since the Dutch government implements this requirement on purpose. Then the sponsor says ‘no problem, I can find another job that fulfils the requirement’, or ‘I could bring my family with another contract’. For this reason, they do not bring cases related to the income requirement to court.

To avoid delays, applicants comply with the strict and arguably illegal requirements to speed up positive decisions in their individual cases. This is quite understandable given that their cases relate to decisions about their family unity. The issues faced in the implementation of the family reunification regulations for Turkish citizens, as elaborated upon by the lawyers in this section, lead SGTD sponsors to have little faith in the Dutch institutions. In addition to this, the implementation of the regulations also results in SGTD sponsors being pushed away from relying on their Dutch citizenship, since they have more rights in the family reunification process as Turkish citizens compared to Dutch citizens, who have never enjoyed the right of free movement in the EU.16 This all gives rise to feelings of being discriminated against based on their membership in a distinct social group.

14

15

16

The minimum income requirement for Turkish citizens is stated on the IND website as €1635,60 as of 1 July 2019, available at https://ind.nl/en/Pages/required-amountsincome_requirement.aspx#126296d4-bb85–4160-8bb5-d15446d830e6, last accessed 26 July 2019 – the same amount of the gross minimum wage per month stated by the Dutch government, available at www.government.nl/topics/minimum-wage/amount-ofthe-minimum-wage, last accessed 26 July 2019. While the income requirement for family reunification in the Netherlands was 120 per cent of the minimum wage, with the Chakroun (C-578/08) judgement of the ECJ, this figure was decreased to 100 per cent. See also Art. 16.1c of Vw 2000 and Art. 3.73–3.75 of Vb 2000. Bonjour and Vink, ‘When Europeanization Backfires’, p. 397; S. van Walsum, The Family and the Nation: Dutch Family Migration Policies in the Context of Changing Family Norms (Newcastle upon Tyne: Cambridge Scholars Publishing, 2008), pp. 232–233. See Sections 2.3 by Jesse and 7.2.3 by Idriz.

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

‘   ’

8.2.4 Restrictive Policies and Denied Rights: Three Steps of Alienation and ‘Othering’ This section focused on the institutional approach of the Netherlands to the family reunification policy, and the implementation of the regulations for Turkish sponsors. As summarised in Tables 8.1 and 8.2, a complex legal framework exists governing the reunification of Turkish immigrant families in the Netherlands due to the shared competences of the EU and the Netherlands and the association law. The approach of Dutch institutions to the implementation of this complex legal framework contributes to the construction of ‘othering’ in three main ways. First, in connection to the highlighted age requirement, court judgments have been prevented through the welltimed issuance of ad hoc residence permits in an effort to seemingly uphold the formal validity of the legislation. Secondly, even if they manage to bring the issue to court and receive a judgement allowing the sustained implementation of their rights, the restrictive administrative interpretation of the judgement limits the scope of the exemptions applied to Turkish citizens. Thirdly, the duration of the legal process to obtain redress is long. These include activities ranging from taking the civic integration exam abroad, to meeting the income requirement. All of these institutional exclusions that are experienced by Turkish citizens, both during the drafting of legislation and the implementation of the regulations, lead to alienation and the creation of ‘othering’, which will be analysed in Section 8.3.

8.3 Perceptions of Discrimination and Alienation by Second Generation Turkish Dutch Based on the institutional background described in Section 8.2, this section will not look at the reactions of the SGTDs to it. The SGTD sponsors participating in the research describe a feeling of being discriminated against and excluded by the family reunification process. These are illustrated by the conditions they had to fulfil: (1) income requirement, (2) taking the civic integration exam abroad and courses in the Netherlands, (3) the high administration fees, and (4) the age requirement.

8.3.1 Income Requirements for Family Reunification The SGTD sponsors, lawyers, and representatives of civil society all drew attention to the strict implementation of the income requirement in terms of both its level and sustainability. Considering the ‘acceptance of

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.    & 



discrimination as a fact of life’, mainly on the grounds of ethnicity and religion, especially in the sphere of labour market participation,17 the difficulties experienced in fulfilling the income requirement is not surprising.18 One SGTD sponsor who had to take a second job, since his income was €100 below the income requirement, thought of these requirements as ‘irrational’. He stated that the government, rather than helping to unite people with their partners, tried to hinder the process instead.19 According to the SGTD sponsors, the difference between the amount they needed to earn and the amount they actually had as income would not be enough to lead to a change of their living standards or level of integration at all, which they considered to be appropriate. This leads them to perceive the rejection of family reunification based on this formal ground as discrimination and a means of deliberate exclusion. This belief is based mainly on the lack of a requirement for an individual assessment of income, which has been raised also by the European Commission as a matter of concern in the implementation of Article 7 of the Family Reunification Directive.20

8.3.2 Civic Integration Exam Abroad and Courses in the Netherlands The second greatest cause of concern for SGTDs in the family reunification process is the need for their partners to take the civic integration exam abroad and then courses in the Netherlands. Although all Turkish citizens are exempt from this requirement, half of the SGTDs in the present study had been required to fulfil these requirements due to the date of their family reunification application. Interviewees raised three concerns about the requirements and the exemptions to it:

17

18

19

20

Netherlands Institute for Human Rights, Report for the 119th session of the Human Rights Committee for adoption of the list of issues prior to reporting for the Kingdom of The Netherlands (2016). W. Huijnk and I. Andriessen, Integratie in zicht?: De integratie van migranten in Nederland op acht terreinen nader bekeken (Den Haag: Sociaal en Cultureel Planbureau, 2016). Between December 2014 and June 2015, 45 interviews were conducted with SGTD sponsors who married a Turkish citizen from Turkey after 2006 – 20 women (W) and 25 men (M). Communication from the Commission to the European Parliament and the Council on guidance for the application of Directive 2003/86/EC on the right to family reunification, COM/2014/0210 final, at 14.

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

‘   ’

(1) discrimination; (2) availability and suitability of study materials; and (3) practical problems. First, interviewees stated that the need to take the civic integration exam abroad is discriminatory on the grounds of nationality.21 There is great awareness that marriage migrants from the EU and European Economic Area, Australia, Canada, Japan, Monaco, New Zealand, South Korea, Switzerland, the United States, and the Vatican do not fall under the scope of the MVV entry-visa requirement, and are exempted from the obligation to take the civic integration exam abroad.22 The official reason, which does not temper the injustice felt at all, is the ‘similarity’ of their countries of origin to the Netherlands in socio-economic and political terms.23 Although this different approach to the implementation of the Civic Integration Act has been criticised by international human rights organisations,24 it is not illegal. However, it is a significant concern among the SGTD sponsors taking part in the research. One woman interviewee said that she felt the conditions should simply apply to everyone. She said that she felt she was being discriminated against based not only on her ethnic background, but also her religious identity, raising concerns about the strict implementation of regulations mainly among the marriage migrants coming from countries such as Turkey and Morocco. Secondly, interviewees stated their conviction that civic integration was used as a means of limiting unwanted immigration from Muslim countries, referring to the high costs of the exam. Thirdly, although they agreed with the importance of language acquisition among immigrants, they stated their practical concerns with the taking of the civic integration exam abroad to reach this aim:25 21

22

23

24

25

Council of Europe: European Commission Against Racism and Intolerance (ECRI), ECRI Report on the Netherlands (fourth monitoring cycle): Adopted on 20 June 2013, 15 October 2013, CRI(2013)39; Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘Migration Paper on Family Reunification’, Discussion Paper (2005). Annex 2, belonging to Art. 2.2 of the Vv 2000 (countries whose nationals are exempt from the requirement to hold a MVV visa). Dutch Parliamentary Papers II 2003–2004, 29700, No. 3, 19 and Dutch Parliamentary Papers II 2004–2005, 29 700, No. 6, 31–32; ECRI, ECRI Report on the Netherlands (fourth monitoring cycle). Human Rights Watch (HRW), ‘The Netherlands: Discrimination in the Name of Integration – Migrants’ Rights under the Integration Abroad Act’, (2008), p. 27. Available at www.hrw.org/sites/default/files/reports/netherlands0508.pdf, last accessed 26 July 2019. See on this issue M. Jesse, ‘The Unlawfulness of Existing Pre-departure Integration Conditions Applied in Family Reunification Scenarios – Urgent Need to Change National

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.    & 



Woman 9: Both the state and I expect him (her husband) to learn Dutch after his arrival in the Netherlands. I can understand that. We have two children. They will go to school. I cannot be the only one going to parent–teacher meetings in school. Nevertheless, I do not approve of taking the language exam in Turkey. How much Dutch can he learn in Turkey?

It is not that they do not want their partners to learn Dutch or to become part of Dutch society. The problem is the exclusory way the Dutch government applies the integration process. Marriage migrants with Turkish citizenship and partners of sponsors with Turkish citizenship are exempt from the obligation to pass an integration exam in the Netherlands within three years of their arrival for the continuation or renewal of their residence permit, in accordance with the August 2011 judgement of the highest Dutch court to rule on the application of the Integration Act 2007 Central Appeals Tribunal (Centrale Raad van Beroep).26 Since the court decision exempted Turkish citizens from the requirements of the Act, they are also exempt from the obligation to pass the integration exam abroad.27 They feel alienated as a result of the civic integration requirement, and the implementation of the exemptions contributes also to their feelings of being discriminated against and excluded mainly based on two separate issues. First, the expenses of SGTD sponsors related to taking the civic integration exam abroad were reimbursed in specific circumstances only, namely if they paid the exam fee or took the exam on or after 16 August 2011, or if they have applied for the reimbursement within the four week

26

27

Laws in the European Union’ (2016) 2(3) International Journal of Migration and Border Studies, 274–288. Dutch Central Appeals Tribunal (CRvB), 16 August 2011, ECLI:NL:CRVB:2011:BR4959; K. Groenendijk and T. Strik, Family Reunification in Germany, Netherlands and the EU since 2000. Nijmegen Migration Law Working Papers Series 2018/02 (Nijmegen: Radboud Universiteit Nijmegen, 2018), p. 18; N. Tezcan-Idriz, ‘Dutch Courts Safeguarding Rights under the EEC–Turkey Association Law’ (2011) 13(2) European Journal of Migration and Law, 219–239; I. Kulu-Glasgow and A. Leerkes, ‘Restricting Turkish Marriage Migration? National Policy, Couples’ Coping Strategies and International Obligations’ (2013) 10(3) Migration Letters, p. 378. Dutch Parliamentary Papers II 2011–2012, 31 143, No. 89; K. de Vries, Integration at the Border: The Dutch Act on Integration Abroad and International Immigration Law (Oxford: Hart Publishing, 2013), p. 55; B. de Hart, T. Strik, and H. Pankratz, Family Reunification: A Barrier or Facilitator of Integration?, The Country Report of the Netherlands (Family Reunification Project Document), (Brussels: European Commission, 2012), p. 59.

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

‘   ’

period within which administrative objections are admissible under Dutch law after the issue of their residence permit (VVR).28 Secondly, following the exemption of Turkish marriage migrants from the civic integration requirement, attending civic integration courses in the Netherlands stopped being free of charge for Turkish citizens. This resulted in further feelings of exclusion, since all the onus for the integration of the marriage migrant is now on the migrant and their partner exclusively. There is no support provided by the Dutch government anymore. When attendance was compulsory, the Dutch government shared this onus, since it was the municipalities that funded and organised the courses in the Netherlands:29 Woman 1: Two or three years ago, when my uncle’s wife came from Turkey, civic integration courses were free. Now, if I want to send my husband to a language school it will cost 2,000–3,000 euro. If the state were really concerned with the integration of marriage migrants, they would continue to run those courses free of charge.

Accordingly, the respondents agreed that the Dutch government employed integration measures as a means of excluding immigrants and preventing new migration, with no consideration of their integration trajectories and requirements. It was also observed during the field research that the rights acquired by SGTD sponsors through the civic integration exam led to perceptions of superiority of Turkish citizenship over Dutch citizenship. This resulted mainly from the inability of Dutch citizens to derive rights from EU law, leading to reverse discrimination in their access to the rights afforded not only to citizens of the EU, but also to Turkish citizens.30 In other words, the system pushed SGTD sponsors away from identifying with their Dutch citizenship and identity and toward the Turkish citizenship and identity.

28

29

30

For the details of the categories of Turkish sponsors for the refund of the expenses related to the civic integration exam abroad, see Dutch Parliamentary Papers (other), 2012, D40450, ‘Compensation Scheme for the Civic Integration Examination Abroad for Turkish Nationals’ issued by Directoraat-Generaal Wonen, Wijken en Integratie Directie Integratie & Samenleving, 16 March 2012. T. Strik, M. Luiten, and R. van Oers, Country Report of the Netherlands (INTEC Project. Integration and naturalisation tests: The new way to European citizenship) (Nijmegen: Radboud Universiteit Nijmegen, 2010). A. Walter, Reverse Discrimination and Family Reunification (Nijmegen: WLP, 2008).

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.    & 



8.3.3 Age Requirements for Family Life Another issue that results in the alienation of SGTD sponsors is the discrepancies related to age requirements. Within the Netherlands, both Dutch citizens and TCNs can marry when they reach the age of 18 according to Dutch law. However, individuals can only apply for family reunification when they have reached the age of 21. The Dutch government explains this requirement as being based on the need to ensure the marriage candidates have the appropriate mental and economic capacity to resist ‘forced’ marriages and ‘patriarchal structures’.31 Considering the fact that individuals tend to get married at younger ages at countries of origin,32 sponsors and applicants often consider themselves to be the target of policies based on the general allegation they were married under duress.33 Man 20: They (native Dutch) also get married before the age of 21. From where did they get the impression that early marriages in the Turkish community are forced, but these here are not? There are Dutch girls who become mothers at the age of 15–16. When a marriage takes place outside the Netherlands, it is oppression. When it is within the Netherlands, it is freedom. This is nonsense.

The implementation of an age requirement for family reunification in the absence of an individual assessment results mainly in the alienation of SGTD sponsors. During the field research, the IND set an age requirement of 18 for family reunifications applications of Turkish citizens if they are married or registered partners, although the age requirement is still 21 for Dutch citizens. All the interviewees were asked about this legal change, which has resulted in reverse discrimination, and nearly all stated that it had resulted in alienation from their Dutch citizenship in both legal and socio-cultural terms.

31

32

33

Memorandum of Explanation to the Decree of 29 September 2004 on the amendment of the Vb 2000 in connection with the implementation of Directive 2003/86/EC and certain other issues regarding family reunification, family formation and public policy, Staat-blad 2004, 496, pp. 10–11; Response of the Dutch government to the European Commission's Green Paper on family reunification COM(2011)735, p. 6. H. de Valk, ‘Pathways into Adulthood. A Comparative Study on Family Life Transitions Among Migrant and Dutch Youth’, PhD thesis, Utrecht University (2006), p. 98; C. van Praag, Marokkanen in Nederland: een profiel (The Hague: NIDI, 2006). G. Kolbaşı-Muyan, Avrupa’da Göçmen Politikaları: Almanya, Hollanda ve Fransa Özelinde Göçmen Politikalarının Karşılaştırması (Ankara: Detay Yayıncılık, 2018), pp. 63–66.

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

‘   ’

8.3.4 High Administration Fees for Family Reunification SGTD sponsors were also unhappy with increasing fees for family reunification in the Netherlands. Many expressed anger at the high administration fees they were required to pay during the family reunification process. Remarkably they saw themselves as a source of revenue for the Dutch government and certainly not as an economic burden on society. This feeling of alienation is an outcome of their realisation of the unjust implementation of high administration fees for residence permits with the judgments of the ECJ:34 Woman 9: Most of the requirements we fulfilled during the family reunification process have been retracted. We paid €350 for the Dutch language test, but they abolished that. We paid €800 for an MVV, which later dropped to €50. These changes led us to question why we paid those amounts.

During the field research, most of the interviewees drew attention to unjust and disproportionate administration fees. While some claimed that this was the outcome of a Dutch perspective that views immigrant origin Dutch as ‘a potential source of revenue’, others saw this as another way of saying that they are unwanted because marriage migrants from certain countries are not subjected to such high administration fees.

8.3.5 Mechanics of Alienation and Feelings of Exclusion This section analyses the opinions of SGTD sponsors on family reunification requirements, which are income, civic integration, taking exams abroad and courses in the Netherlands, high administrative costs, and age requirements, to understand the mechanics behind feelings of alienation and exclusion. The main conclusions follow: First, the combination of discrimination on the labour market and the lack of individual assessments of the income requirement for family reunification results in feelings of exclusion. Secondly, the SGTD sponsors raised concerns on the discriminatory nature of the requirement to take the civic integration exam abroad due to the exemptions based on nationality, but also its material dimension, referring to the costs and practicalities of learning Dutch for the marriage migrant before arrival. 34

Case C-242/06, Minister voor Vreemdelingenzaken en Integratie v. T. Sahin ECLI:EU: C:2009:554; Case C-92/07, Commission v. Netherlands ECLI:EU:C:2010:228; Dutch Parliamentary Papers II 2009–2010, 30573, No. 48.

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.       



Nevertheless, the exemption from the civic integration requirements of Turkish citizens that came with the court decision does not prevent them from feeling discriminated against. Indeed, the implementation of the judgement also contributes to their alienation because of the time limitations on the reimbursement of the expenses of SGTDs who took the civic integration exam abroad, and the decision of the Dutch government to put the financial onus of civic integration courses in the Netherlands on Turkish citizens. Thirdly, the high administrative costs bring further feelings of alienation and discrimination among SGTDs after they realise the ‘unjust’ nature of the process from the outset. In these terms, their good legal situation at a certain point becomes secondary to their feelings of exclusion. Finally, the age requirement results in a high level of perceived discrimination and exclusion. The exemptions of Turkish citizens from the age requirement and the need to take the civic integration exam abroad following an administrative decision makes them feel alienated from their Dutch citizenship, leading them to grow more attached to their Turkish citizenship due to the associated privileged rights. In summary, SGTD sponsors feel alienated by the regulations and practices that are applied under the guise of integration. It is not only the restrictive requirements, but also the negative experiences of the family reunification administration and the realisation of the unjust implementations of exemptions that contribute to their alienation and the continued creation of ‘othering’. Accordingly, these have negative consequences on their integration, which will be elaborated upon in Section 8.4.

8.4

Impact on the Integration of SGTD Sponsors

As detailed in Sections 8.2 and 8.3, the family reunification policy and the implementation of the requirements lead to feelings of alienation and being discriminated against and excluded based on ethnic background and cultural and religious differences. In this sense, and as highlighted in Chapter 1, ‘othering’ is the opposite of integration. Family reunification regulations lead to perceptions of discrimination among those they are meant to aid based mainly on cultural differences. This has a negative effect on their feelings of belonging in Dutch society and their Dutch citizenship, as well as their trust in Dutch institutions. Accordingly, the implementation of the family reunification regulations has contradictory consequences in terms of the socio-cultural integration of SGTD sponsors.

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

‘   ’

According to the local Turkish community, since the early 2000s, the Dutch government started perceiving Muslim immigrants as a threat to Dutch society. In fact, the Dutch family reunification policy is viewed in the context of this new perspective on immigrants. The respondents spoke of being referred to as the ‘unwanted others’ in society. One male participant (M20), speaking on the discriminatory nature of the regulations, said that although anyone can marry whoever they want, and from wherever, there is a need to meet restrictive requirements for family reunification when the marriage migrant is from Turkey. He described this as an indirect way of saying ‘we do not want you’. Some of the participants expressed their perceptions of discrimination and feelings of exclusion through the experiences of their partners during the family reunification process. One woman spoke about the mandatory tuberculosis test for Turkish migrants that existed up until mid-2015: Woman 12: It is not fair to put so many obstacles in the way of migration to the Netherlands from Turkey. I bitterly resented the tuberculosis test. My husband had to have X-rays taken within a week of his arrival in the Netherlands to check for tuberculosis. Do you know what came to my mind: The treatment of the Jews in the Nazi concentration camps! What would happen even if he had tuberculosis? Is there no tuberculosis or Ebola in the Netherlands? I bitterly resented this practice.

Although the tuberculosis test is implemented with public health in mind, the interviewees often stated that it was unfair and humiliating, since only marriage migrants coming from certain countries were subjected to this treatment.35 Most of the interviewees expressed that their personal experiences of the family reunification process had led them to realise that they would never be accepted as an equal member of Dutch society. According to most of the respondents, the restrictive family reunification regulations categorically target the immigrant Muslim communities in the Netherlands, including those of Turkish origin.36 Among the women respondents, it was stated that they wanted to forget the family

35

36

Marriage migrants from certain countries must be tested for tuberculosis (TB) after their arrival in the Netherlands due to public health considerations. The SGTD sponsors in this research stated their unhappiness with the obligation of Turks to undergo such tests, up until the practice was abolished for Turkish in mid-2015. S. Bonjour and J. W. Duyvendak, ‘The “Migrant with Poor Prospects”: Racialized Intersections of Class and Culture in Dutch Civic Integration Debates’ (2018) 41(5) Ethnic and Racial Studies, p. 891.

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.       



reunification process and to leave it behind. When asked explicitly about their personal experiences and feelings, they expressed anger, resentment, and feelings of betrayal. Although men reflected similar feelings, they focused mainly on their perceptions of Dutch society and the government, considering the discriminatory implementation of the regulations and the restrictive shift to be a result of the xenophobic and Islamophobic climate. Man 6: They are doing these because of xenophobia. They do not want us in the Netherlands anymore – that’s why they are introducing restrictive regulations. In the 1980s you could bring your partner when you were 18 years old without a language exam or income requirement. Why did they tighten [the regulations] later? To prevent the arrival of Turks!

The SGTD sponsors feel they are excluded and discriminated against due both to their partners being Turkish nationals, and their personal experiences of the family reunification process. The SGTD sponsors do not consider the Dutch family reunification and integration policies to be ‘sincere’, and believe the Dutch government employs the immigrant integration argument in the family reunification policy to limit immigration and to motivate SGTDs to return to Turkey. In addition to the discriminatory and exclusionary feelings they have, they also feel less attached to their Dutch citizenship due to their experience of reverse discrimination. It is often assumed that the acquisition of citizenship of the country of residence would aid in the integration of immigrants, as they would have more rights after naturalisation. In the case of the Netherlands, however, Dutch citizenship does not mean Turkish citizens enjoy more rights during the process of family reunification. The Dutch government introduced restrictive family reunification requirements not only for TCNs, but also for Dutch citizens. The SGTD sponsors become more involved with their Turkish citizenship during the family reunification process in the Netherlands, since Turkish citizens are exempted from many restrictive requirements under Dutch law in accordance with ECJ judgments based on the rights derived from the EEC–Turkey association law. In addition to this, ethnic solidarity helps them to fulfil the requirement and to learn how to meet the requirements. It can be concluded that, while the perceived discrimination contributes to their reactive identification with the Turkish community and their Turkish identity, their privileged legal status results in their self-identification more with their Turkish background and the Turkish network.

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

‘   ’

8.5 Conclusion: The Administrative Creation of ‘Otherness’ This chapter showcased the impact of Dutch family reunification regulations, and highlighted how they led, intentionally or unintentionally, to the perception of discrimination, alienation, and ‘othering’ from the Dutch society. The analysis was based mainly on the results of participant observations, expert interviews, and interviews with SGTD sponsors who experienced the family reunification process first-hand between 2006 and 2014, as part of an ethnographic field research carried out between October 2014 and October 2015. The chapter has discussed the implementation of the family reunification law for Turkish citizens residing in the Netherlands, first from an institutional and legal point of view; secondly, based on the perceptions of the SGTD sponsors; and thirdly, by highlighting its impact on the integration process. It can be concluded that not only the regulations and policy, but also how they are applied, contribute to the ‘othering’ of SGTD. The strict administrative practices, differing interpretations of administrative institutions on the legislations, long duration of family reunification applications and court decisions increase the alienation of SGTD sponsors. The SGTD sponsors consider that their privileged legal status as a result of the EU law is hampered by the Dutch administrations on behalf of the government. Their privileged legal situation at a certain point takes second place to their feeling of being excluded. The family reunification measures applied in the name of integration are one of the main reasons for the alienation of SGTDs and the creation of a feeling of ‘otherness’. Accordingly, the Dutch government achieves the opposite of its official objective, which is ‘integration’. This also affects the descendants of immigrants who did not migrate themselves. In fact, the Second Generation Turkish Dutch sponsors feel alienated the most. Their expectation of belonging is destroyed.

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9 Different Levels of ‘Legal Otherness’ in the Context of Expulsion and Entry Bans   9.1

Introduction

Lawfully residing foreigners often enjoy the same rights as nationals but, as long as they lack a secure residence status, they will always remain outsiders. The absence of an unconditional residence right markedly exposes foreigners’ ‘otherness’; their deportability draws a clear demarcation line between themselves and ‘those who belong’. Even European Union (hereinafter: EU) citizens, who enjoy free movement and residence rights,1 rights of political participation2 and equal treatment with nationals,3 cannot rely on their EU citizenship to obtain an absolute security of residence. The lack of a secure residence right affects foreigners’ perception of belonging and impinges on their preparedness to integrate. While nationals normally enjoy immunity from expulsion, as their membership and presence on the national territory is unconditional,4 foreigners can usually be expelled. Even though this dichotomy generally holds true, it becomes less distinct if viewed through the lens of Member States’ power to deprive nationals of their nationality. Through the intermediate step of denaturalisation, the prohibition of expulsion of nationals can be bypassed so that former nationals become deportable outsiders. In recent years, several states have expanded their executive’s

1

2 3

4

Art. 20(2)(a), 21(1) of the Consolidated Version of the Treaty on the Functioning of the European Union, OJ No. C202/47, 7 June 2016 (hereinafter: TFEU); Art. 45 of the Charter of Fundamental Rights of the European Union, OJ No. C202/389, 7 June 2016. Art. 20(2)(b) TFEU. Art. 24 of Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ 2004 No. L158/77, 20 April 2004, Art. 18 TFEU. B. Anderson, M. Gibney, and E. Paoletti, ‘Citizenship, Deportation and the Boundaries of Belonging’ (2011) 15(5) Citizenship Studies, p. 555.



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

   ‘ ’

power to deprive nationals of their citizenship,5 which has led to an increase of denaturalisation, notably in the UK.6 On the other hand, immunity from expulsion is not necessarily reserved to nationals,7 as exemplified by the Netherlands, where certain categories of long-term resident non-nationals were previously exempted from expulsion, until this protection was abolished in 2012.8 Despite these exceptions, ‘deportability’ is generally considered to be ‘one of the key markers of otherness’.9 The distinction between those who belong and those who are considered outsiders depends on the legal context under scrutiny. The increasingly multi-layered and intertwined nature of legal orders creates various boundaries and different levels of belonging and ‘otherness’. The binary distinction between insiders and outsiders falls short of comprehensively capturing an individual’s complex situation in an environment of interdependent legal orders, where s/he might simultaneously be an insider in one legal system and an outsider in another. This contribution seeks to map the different degrees of ‘otherness’ that emerge in the context of expulsion and entry bans in EU law. The analysis is structured as follows: Section 9.2 sets the scene by briefly addressing the concepts of public policy and public security and by introducing the different groups of foreigners, who can be subject to an expulsion on grounds of public policy or public security. Moreover, it expounds the nexus between security of residence and the foreigners’ willingness to integrate into society. Following this foundational section, Section 9.3 focuses on the different degrees of ‘legal otherness’ that emanate from the protection against expulsion provided for by Directive 5

6

7

8

9

S. Mantu, ‘Citizenship Deprivation in the UK’ (2014) 19(1–2) Tilburg Law Review, 163–170; É. Fargues, ‘The Revival of Citizenship Deprivation in France and the UK as an Instance of Citizenship Renationalisation’ (2017) 21(8) Citizenship Studies, 984. See P. Weil and N. Handler, ‘Revocation of Citizenship and Rule of Law: How Judicial Review Defeated Britain’s First Denaturalization Regime’ (2018) 36(2) Law and History Review, 295; L. Zedner, ‘Citizenship Deprivation, Security and Human Rights’ (2016) 18 (2) European Journal of Migration and Law, 231. See also: ECtHR, Case of K 2 v. United Kingdom, application no. 42387/13. J. Chlebny, ‘Public Order, National Security and the Rights of Third-Country Nationals in Immigration Cases’ (2018) 20(2) European Journal of Migration and Law, 121 ‘Besluit van 26 maart 2012, houdende wijziging van het Vreemdelingenbesluit 2000 in verband met aanscherping van de glijdende schaal’, Staatsblad van het Koninkrijk der Nederlanden, Jaargang 2012, p. 158. D. Kochenov and B. Pirker, ‘Deporting the Citizens within the European Union: A Counter-Intuitive Trend in Case C-348/09, P.I. v. Oberbürgermeisterin der Stadt Remscheid’ (2013) 19(2) Columbia Journal of European Law, 372–373.

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.    

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2004/38/EC10 (hereinafter: Citizenship Directive), the EEC–Turkey Association Agreement and Directive 2003/109/EC11 (hereinafter: LTRDirective). These legal instruments have been selected as they provide for different levels of protection against expulsion, thereby creating a hierarchy of legal residents in the EU. Moreover, Section 9.3 examines the case law of the Court of Justice of the European Union (hereinafter: CJEU or Court), which modifies the protection against expulsion provided for by the above-mentioned instruments, thus impacting on the different degrees of ‘otherness’. This section excludes third-country nationals, whose protection against expulsion is not governed by EU law. Section 9.4 addresses entry bans, as these measures can give long term effects to expulsion decisions and thereby intensify their exclusionary effects and the ‘othering’ of non-nationals. Finally, the findings are summarised in the concluding Section 9.5.

9.2

Different Levels of Protection against Expulsion, Security of Residence, and Integration

Foreigners covered by the abovementioned legal instruments can only be expelled on grounds of public policy,12 public security,13 or public health.14 The notions of public policy and public security are autonomous EU law notions and leave both the CJEU and the Member States an interpretational margin. The Court has not provided an exhaustive interpretation of these concepts and noted that ‘the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another and it is therefore necessary . . . to allow the competent national authorities an area of discretion within the limits imposed by the Treaty’.15 With regard to public security, the Court similarly noted that ‘European law does not

10

11

12

13 14

15

Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ 2004 No. L158/77, 20 April 2004. Council Directive 2003/109/EC of 25 November 2003 concerning the status of thirdcountry nationals who are long-term residents, OJ 2004 No. L16/44, 23 January 2004. See Art. 27(2) and 28 of the Citizenship Directive; Art. 12 of the LTR-Directive; Art. 14(1) of Association Council Decision No. 1/80. Ibid. See Art. 27(1) of the Citizenship Directive; Art. 14(1) of Association Council Decision No. 1/80. Case C-41/74, Van Duyn ECLI:EU:C:1974:133, para. 18.

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

   ‘ ’

impose on Member States a uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public security.’16 The Court has a supervisory function over the degree of discretion exercised by Member States when expelling foreigners on grounds of public policy or public security. The group of individuals that can be subject to expulsion on grounds of public policy or public security is neither homogenous nor static. First, it is inhomogeneous in so far as different groups of foreigners enjoy different levels of protection against expulsion, which leads to varying degrees of security of residence. The level of protection is partly determined by the nationality of the foreigner. Different rationales apply and, therefore, different levels of ‘legal otherness’ emerge depending on whether the foreigner is an EU, EEA, or Swiss citizen, a third-country national family member of one of these groups, a Turkish national covered by the EEC–Turkey Association Agreement, a long term resident third-country national or a third-country national who is not covered by a specific regime. Morano-Foadi and Andreadakis describe this as ‘a hierarchy of legal residents within the EU, with the Union citizens at the apex’.17 This hierarchy depicts the different levels of protection afforded by EU law and illustrates the different levels of ‘otherness’. It is remarkable that even EU citizens, while enjoying equal treatment rights with nationals in most areas of life,18 remain ‘others’ due to the absence of a secure residence status. Secondly, the degree of protection granted to members of a specific group is not necessarily static. The passage of time in relation to a foreigner’s residence usually decreases the level of ‘legal otherness’ by strengthening the protection against expulsion. Thirdly, the different groups of legal residents are not static, as marriage and registered partnership with a mobile EU citizen or the acquisition of EU citizenship enhance the protection against expulsion, thereby reducing the degree of ‘legal otherness’. This classification exclusively refers to the group of foreigners and views them through the lens of EU law. At the national level, the degree of protection against expulsion and the resulting level of ‘legal otherness’ can be more fine-grained, as evidenced by the status of Irish citizens in 16 17

18

Case C-348/09, P. I. ECLI:EU:C:2012:300, para. 21. S. Morano-Foadi and S. Andreadakis, ‘The Convergence of the European Legal System in the Treatment of Third-Country Nationals in Europe: The ECJ and ECtHR Jurisprudence’ (2011) 22(4) European Journal of International Law, 1076. See Art. 18 TFEU; Art. 24 of the Citizenship Directive.

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.    

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the UK. The described hierarchy excludes nationals, as nationality is considered to indicate a deeper level of integration, which elevates the individual from the sphere of the ‘outsiders’ to the sphere of ‘those who belong’. In the context of Article 8 of the European Convention on Human Rights, the European Court of Human Rights (hereinafter: ECtHR) has often used a foreigner’s lack of interest in acquiring the nationality of the expelling state to his or her detriment.19 Finally, the nexus between deportability and integration is relevant, as security of residence and equal treatment with nationals are considered to be conducive to the immigrant’s integration into society.20 Foreigners who do not enjoy a secure residence status are said to lack an incentive to integrate.21 Already in 1994, the EU Commission identified security of stay and permanent residence for all those (third-country nationals) satisfying stability criteria as the ‘fundamental prerequisites for a successful integration’.22 Without ‘this foundation, uncertainty will pervade other aspects of the integration process’.23 The EU Commission noted that an ‘immigrant’s own commitment to integration depends to a large extent on whether he feels secure in his residence status’.24 The level of protection against expulsion determines not only the foreigner’s degree of ‘legal otherness’, it also reflects the foreigner’s security of residence, which in turn impacts on the foreigner’s willingness and preparedness to integrate into the society of the ‘host’ state. A strong protection against expulsion implies a low level of ‘legal otherness’ and a relatively secure residence status, which is considered to be conducive to the foreigner’s integration. A low level of protection against expulsion, by contrast, entails a higher level of ‘legal otherness’ and leads to an insecure residence status, which is capable of impacting negatively on the foreigner’s preparedness to integrate into society, thereby perpetuating her or his factual ‘otherness’.

19

20

21

22

23 24

ECtHR, Case of Boughanemi v. France, application no. 22070/93, para. 44; ECtHR Case of El Boujaïdi v. France, application no. 25613/94, para. 40. K. Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’ (2004) 6(2) European Journal of Migration and Law, 114. K. Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, in E. Guild and P. Minderhoud (eds.), Security of Residence and Expulsion (The Hague: Kluwer Law International, 2001), p. 7. COM(94) 23 final, Communication from the Commission to the Council and the European Parliament on Immigration and Asylum Policies, 23 February 1994, para. 124. Ibid. Ibid.

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

   ‘ ’

9.3 Different Degrees of ‘Legal Otherness’ in EU Law The subsequent subsections explore the different levels of ‘legal otherness’ that emerge respectively from the protection against expulsion provided for by the Citizenship Directive, the EEC–Turkey Association Agreement, and the LTR-Directive. Each subsection begins by introducing the relevant legal provisions on expulsion and proceeds by addressing their interpretation by the CJEU. Finally, the Court’s case law is contextualised by highlighting its ramifications in relation to the different degrees of ‘legal otherness’.

9.3.1 EU Citizens and Their Family Members Covered by the Citizenship Directive During the drafting process of the Citizenship Directive, the EU Commission originally proposed that EU citizens and their family members, who have acquired the right of permanent residence, as well as minor family members, enjoy an absolute protection against expulsion.25 By affording this group of non-nationals an absolute security of residence, the Commission’s proposal placed them on an equal footing with nationals and elevated them from the sphere of ‘legal others’ to the group of ‘those who belong’. Interestingly, this proposal did not only apply to EU citizens, but covered their family members ‘irrespective of nationality’26 and thereby included so-called third-country nationals, a term which vividly marks their ‘legal otherness’. The Commission’s progressive approach encroached on Member States’ power to draw a demarcation line between ‘us’ and ‘them’.27 Therefore, it was overwhelmingly rejected by the Member States,28 who wished to retain the capacity to expel EU citizens and their family members, irrespective of the duration of their residence, who pose a threat to their public policy or public security. Despite this setback, the Citizenship Directive affords its beneficiaries an enhanced protection against expulsion, which is considered a major

25

26 27 28

COM(2001) 257 final, Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, Art. 26 (2). Ibid. See Section 2.3 by Jesse. Common Position (EC) No. 6/2004, adopted by the Council on 5 December 2003, OJ No. C54E, 2 March 2004.

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.    ‘ ’



innovation of the Directive.29 An explanation for this reinforced security of residence is provided by Recitals 23 and 24 of the preamble to the Citizenship Directive, which strongly rely on the concept of integration. Recital 23 clarifies that expulsion on grounds of public policy or public security ‘is a measure that can seriously harm persons who . . . have become genuinely integrated into the host Member State’ and thereby elucidates that foreigners can be genuinely integrated despite being subject to an expulsion measure. The same rationale and emphasis on integration is visible in Recital 24. This Recital states that ‘the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be’. According to AG Bot, this Recital demonstrates that the EU legislature assumes that the longer an EU citizen resides in the host Member State, the closer his or her links are to this State and the more s/he is integrated.30 Accordingly, the different degrees of protection against expulsion that are afforded by the Citizenship Directive depend on the duration of the EU citizen’s residence in the ‘host’ Member State.

9.3.1.1 The Protection against Expulsion Provided for by the Citizenship Directive Following the logic of an incrementally stronger protection against expulsion depending on the duration of the beneficiary’s residence, the Citizenship Directive establishes a three-tier system, whereby all stages have to comply with the requirements set out in Articles 27 and 28(1) of the Directive. The first tier of protection applies to EU citizens and their (third-country national) family members who have resided in the host Member State for less than five years; they can only be expelled on grounds of public policy, public security, or public health.31 Public health can only justify an expulsion in the first three months of residence. The second stage covers those with more than 5 and less than 10 years of residence, who can only be expelled on serious grounds of public policy or public security.32 Finally, the third and most enhanced level of protection is provided for by Article 28(3) of the Citizenship Directive and is

29

30 31 32

M. Meduna, ‘“Scelestus Europeus Sum”: What Protection against Expulsion Does EU Citizenship Offer to European Offenders?’, in D. Kochenov (ed.), EU Citizenship and Federalism, The Role of Rights (Cambridge: Cambridge University Press, 2017), p. 404. Case C-145/09, Tsakouridis, Opinion of AG Bot, ECLI:EU:C:2010:322, para. 43. Art. 27(1) of the Citizenship Directive. Art. 28(2) of the Citizenship Directive.

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

   ‘ ’

afforded to EU citizens with more than 10 years of residence and to minor EU citizens. These two groups of EU citizens can only be expelled on imperative grounds of public security. Third-country national family members of EU citizens are excluded from the ambit of this provision and, in contrast to the previous stages, Article 28(3) omits any reference to the notion of public policy, which can no longer serve as a legitimate ground for expulsion.

9.3.1.2 The Court’s Interpretation of Provisions on Expulsion The strong protection that the EU legislature afforded to EU citizens was subsequently weakened by the CJEU. In the Tsakouridis33 case, which concerned the dealing of narcotics as part of an organised group, and in the P.I.34 case, where an EU citizen was jailed for sexual abuse, sexual coercion, and rape of a minor,35 the Court was asked whether these crimes are covered by the notion of public security. The absence of an exhaustive definition of public security is partly caused by the interlocking functions of the national and the European level, and by the variety of EU legal instruments in which the notion of public security is used. The latter aspect is highlighted by Koutrakos, who states that ‘EU law introduces various distinctions in the definition of public security in different areas, hence complicating further the interpretation of what is an inherently politically charged concept’.36 Moreover, EU legal instruments contain different notions and refer, next to the concepts of public policy and public security, to the concept of national security,37 which makes a clear definition and demarcation of the notion of public security even more difficult.38 Both Tsakouridis and P. I. had resided in the host Member State for more than 10 years and therefore enjoyed the protection of Article 28(3) of the Citizenship Directive, which restricts Member States’ capacity to expel EU citizens by limiting expulsions to imperative grounds of public security. In cases unrelated to expulsions, the Court 33 34 35 36

37

38

Case C-145/09, Tsakouridis ECLI:EU:C:2010:708. Case C-348/09, P. I. ECLI:EU:C:2012:300. Ibid., para. 17. P. Koutrakos, ‘Public Security Exceptions and EU Free Movement Law’, in P. Koutrakos, N. Nic Shuibhne and P. Sypris (eds.), Exceptions from EU Free Movement Law (Oxford: Hart Publishing, 2016), p. 215. See for example Art. 33(2) of the Citizenship Directive and Art. 7(4) of Directive 2008/ 115/EC. For further information see, Chlebny, ‘Public Order, National Security and the Rights of Third-Country Nationals in Immigration Cases’, p. 119.

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.    ‘ ’



held that public security refers to the ‘Member State’s internal and external security’.39 The referring national court also adopted this definition when it took the view that Tsakouridis’ crimes did not constitute a threat to public security.40 The CJEU, by contrast, considered that the crimes committed by Tsakouridis and P. I. were capable of being covered by the concept of public security,41 and left the final decision regarding the EU citizens’ expulsion to the referring national courts. By ruling that these crimes, which undoubtedly pose a threat to public policy, are also capable of being covered by the notion of public security, the CJEU thinned the distinction between the wide notion of public policy and the narrow concept of public security. The Court’s judgments undermine both legal certainty42 and EU citizens’ protection against expulsion after 10 years of residence, for which it has received considerable criticism.43 The judgments in Tsakouridis and P. I. did not remain isolated incidents and instead marked a general shift in the Court’s case law, characterised by a strengthening of Member States’ sovereignty and an expansion of their discretion to expel EU citizens. The CJEU continued this trend in the M. G.44 judgement, which concerned the calculation of the 10-year period mentioned in Article 28(3)(a) of the Citizenship Directive. In M. G., the Court linked EU citizens’ protection against expulsion to the vague notion of integration by stating that the ‘degree of integration of the persons concerned is a vital consideration underpinning . . . the system of protection against expulsion’.45 The Court stated that this justifies not taking into account periods of imprisonment when calculating the 10-year period.46 While it is comprehensible that times spent in prison are disregarded for the purpose of

39

40 41

42 43

44 45 46

Case C-367/89 Aimé Richardt and Les Accessoires Scientifiques SNC ECLI:EU:C:1991:376, para. 22; Case C-83/94 Leifer EU:C:1995:329, para. 26. Case C-145/09, Tsakouridis ECLI:EU:C:2010:708, para. 20. Case C-348/09, P.I. ECLI:EU:C:2012:300, para. 28; Case C-145/09, Tsakouridis ECLI:EU: C:2010:708, paras. 45, 55. See Meduna, ‘Scelestus Europeus Sum’, p. 405. See G. Anagnostaras, ‘Enhanced Protection of EU Nationals against Expulsion and the Concept of Internal Public Security: Comment on the PI Case’ (2012) 37(4) European Law Review, pp. 630–636; Kochenov and Pirker, ‘Deporting the Citizens within the European Union’, p. 388; D. Kostakopoulou and N. Ferreira, ‘Testing Liberal Norms: The Public Policy and Public Security Derogations and the Cracks in European Union Citizenship’ (2014) 20(1) Columbia Journal of European Law, 173. Case C-400/12, M.G. ECLI:EU:C:2014:9. Ibid., para. 32. Ibid.

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

   ‘ ’

calculating the duration of residence, the Court also stipulated that the 10year period has to be calculated by counting back from the decision to expel the EU citizen and that residence must, in principle, be continuous.47 Moreover, it ruled that periods of imprisonment in principle break the continuity of residence48 even though an overall assessment has to be conducted to establish whether the EU citizen’s integrative links have been broken.49 The calculation method established by the Court allows Member States to deprive EU citizens of the protection afforded to them by Article 28(3)(a) of the Citizenship Directive by imposing a prison term prior to expulsion, which in principle interrupts the continuity of residence. Even though the Court clarified the effects of imprisonment in Franco Vomero50 by stating that time spent in prison cannot be considered to automatically break EU citizens’ integrative links,51 Member States still enjoy a considerable discretion in denying EU citizens the protection against expulsion if they were previously imprisoned. While Meduna points out that the Court avoids interpreting the protection against expulsion as an insurmountable obstacle,52 the Court’s current case law points in the opposite direction by considerably lowering the threshold of protection and providing Member States with a variety of options to expel EU citizens.

9.3.1.3 Conclusions regarding EU Citizens’ ‘Legal Otherness’ The Citizenship Directive might foster the idea that EU citizens’ enhanced protection against expulsion grants them a security of residence close to that of nationals and that their level of ‘legal otherness’ is marginal. Such an interpretation is supported by Barnard’s statement, who observed in 2007, in reference to the strong protection afforded by Article 28(3) of the Citizenship Directive, that ‘the migrant EU citizen is treated like a national in all but name’.53 Similarly, Morano-Foadi and Andreadakis argued in 2011 that the CJEU ‘places EU citizens on a strong basis of equality with the state’s own nationals’.54 However, after 47 48 49 50 51 52 53

54

Ibid., para. 28. Ibid., para. 36. Ibid., paras. 35, 36. Joined Cases C‑316/16 and C‑424/16, B and Franco Vomero ECLI:EU:C:2018:256. Ibid., para. 71. Meduna, ‘Scelestus Europeus Sum’, p. 404. C. Barnard, The Substantive Law of the EU, The Four Freedoms, 2nd ed. (Oxford: Oxford University Press, 2007), p. 468. Morano-Foadi and Andreadakis, ‘The Convergence of the European Legal System’, p. 1076.

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.    ‘ ’

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Tsakouridis and P. I., the frictions between the black letter law and its application became more obvious. Kochenov and Pirker noted in 2014 that EU citizens and nationals have not been put on equal footing when it comes to expulsion, which ‘is indicative of the structural weakness of the citizenship status’.55 Meduna highlighted that the ‘public policy / security derogation lies at the border between supranational and national interests, where EU citizens cease to be fellow citizens and become aliens’.56 Kostakopoulou and Ferreira rightly stated that the deportation of permanently resident EU citizens ‘effectively makes nationality the ultimate determinant of belonging’.57 Instead of enjoying the same status as nationals, EU citizens are deportable and remain ‘legal others’. Even though the Citizenship Directive approximated EU citizens’ status to that of nationals by affording them and their family members enhanced protection against expulsion, which diminished their level of ‘legal otherness’ and fostered their integration into the society, the Court’s case law took a different direction. By augmenting Member States’ discretion to expel EU citizens, the Court’s case law increases their ‘legal otherness’, which in turn impinges on their willingness to integrate.

9.3.2 Turkish Nationals Covered by the EEC–Turkey Association Agreement Turkish nationals are covered by the EEC–Turkey Association Agreement and benefit, as a result of the Court’s case law, from the standards of protection that were applicable to workers of the Member States. The legal basis for the expulsion of Turkish nationals is Article 14(1) of Association Council Decision No. 1/80, which provides that ‘(t)he provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health’. In Nazli, the Court interpreted the public policy exception in Article 14(1) and ruled that ‘reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Community’.58 The Court confirmed this approach in several judgments and held that this ‘parallel interpretation’ 55 56 57 58

Kochenov and Pirker, ‘Deporting the Citizens within the European Union’, p. 378. Meduna, ‘Scelestus Europeus Sum’, p. 414. Kostakopoulou and Ferreira, ‘Testing Liberal Norms’, p. 177. Case C-340/97, Nazli ECLI:EU:C:2000:77, para. 56.

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

   ‘ ’

is justified, as the wording of Article 14 of Council Decision No 1/80 and the wording of the Treaty provision are almost identical.59 The Court repeatedly held that a public policy or public security decision pursuant to Article 14(1) requires that the personal conduct of the individual concerned poses a present, genuine, and sufficiently serious threat to a fundamental interest of society,60 which also constitutes a core principle of EU citizens’ protection against expulsion.61 After the adoption of the Citizenship Directive, the Court was asked in the Ziebell62 case whether Turkish nationals can rely on Article 28(3)(a) of the Citizenship Directive. Mr. Ziebell was born and raised in Germany, had resided there for more than 10 years, and even applied for German citizenship, which he was denied on account of his criminal offences.63 The Court ruled that Article 28(3) does not lend itself to application by analogy and therefore cannot be relied on by Turkish citizens with more than 10 years of lawful residence. In reaching this conclusion, the CJEU compared the ‘objective pursued by the Association Agreement and the context of which it forms a part’ and that of the Citizenship Directive.64 While the EEC–Turkey Association pursues a purely economic purpose,65 the Citizenship Directive is ‘far from pursuing a purely economic objective’ and ‘aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States’.66 Moreover, the Court held that the concept of ‘imperative grounds’ of public security in Article 28(3)(a) of the Citizenship Directive has no equivalent in Article 14(1) of Decision No 1/80.67 Due to the differences not only in the wording, but also in the object and purpose of the EEC–Turkey Association Agreement and the Citizenship Directive, the CJEU ascertained that Article 28(3), which bars expulsion measures unless justified by imperative grounds of public security, is not applicable 59

60

61 62 63 64 65 66 67

Case C-303/08, Metin Bozkurt ECLI:EU:C:2010:800, para. 55; Case C-349/06, Polat ECLI: EU:C:2007:581, para. 30; Case C-136/03, Dörr and Ünal ECLI:EU:C:2005:340, para. 63; Case C-467/02, Cetinkaya ECLI:EU:C:2004:708, para. 43; Case C-340/97, Nazli ECLI:EU: C:2000:77, para. 56. Case C-303/08, Metin Bozkurt ECLI:EU:C:2010:800, para. 61; Case C-371/08, Ziebell ECLI:EU:C:2011:809, para. 82. Art. 27(2) of the Citizenship Directive. Case C-371/08, Ziebell ECLI:EU:C:2011:809. Ibid., paras. 32–35. Ibid., para. 62. Ibid., paras. 64, 68, 72. Ibid., para. 69. Ibid., para. 71.

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.    ‘ ’



to Turkish nationals.68 Nonetheless, the Court clarified that the standards of protection against expulsion, which it had previously developed in the context of nationals of the Member States and subsequently extended to Turkish citizens, continue to apply.69 In sum, the Court’s case law has strengthened Turkish nationals’ protection against expulsion by placing them in a similar position to that enjoyed by EU citizens. Their level of ‘legal otherness’ is nonetheless greater than that of EU citizens, as they lack the possibility to invoke Article 28(3) of the Citizenship Directive. On the other hand, the continuous erosion of EU citizens’ protection against expulsion, in particular the weakening of the distinguishing characteristics of Article 28(3), and the simultaneous strengthening of Turkish nationals’ protection have reduced the differences between these two groups.

9.3.3 Long Term Resident Third-Country Nationals Covered by the LTR-Directive Third-country nationals who have resided legally and continuously on the territory of the host Member State for five years acquire the status of long term residents provided by the LTR-Directive.70 The Directive, which also applies to Turkish citizens, grants beneficiaries the right to equal treatment with nationals in selected areas71 and accords them an enhanced protection against expulsion. Article 12(1) provides that ‘Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security.’ In López Pastuzano, the CJEU elaborated on the interpretation of Article 12 and emphasised, with reference to the Ziebell judgement, that an expulsion measure ‘may not be ordered automatically following a criminal conviction, but rather requires a caseby-case assessment’.72 Moreover, the Court referred to two paragraphs of its Ziebell judgement containing core principles of Turkish nationals’ protection against expulsion.73 One of these principles stipulates that the competent national authorities must show that ‘the personal conduct 68 69 70 71 72 73

Ibid., para. 74. Ibid, paras. 81–84. See Art. 4 of the LTR-Directive. Art. 11(1) of the LTR-Directive. Case C‑636/16, López Pastuzano ECLI:EU:C:2017:949, para. 27. In Case C‑636/16, López Pastuzano ECLI:EU:C:2017:949, para. 27 the Court referred to paras. 82 and 83 of the Ziebell judgement.

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

   ‘ ’

of the individual concerned constitutes at present a genuine and sufficiently serious threat to a fundamental interest of society’74 and that ‘the principle of proportionality and the fundamental rights of the person’75 must be observed. The other paragraph of the Ziebell judgement that was quoted by the Court in López Pastuzano contains the prohibition of expulsion decisions based on general preventive grounds.76 Even though the Court did not explicitly refer to the principles that are contained in other paragraphs of the Ziebell judgement, the López Pastuzano judgement underlines the aim of synchronising long term resident thirdcountry nationals’ protection with the protection that is afforded to Turkish nationals. Turkish nationals’ protection against expulsion is in turn based on the general principles that were developed regarding nationals of the Member States. In sum, the Court has improved long term resident third-country nationals’ protection against expulsion by applying the general principles of EU citizens’ protection against expulsion when interpreting Article 12 of the LTR-Directive. Moreover, the Court emphasised in López Pastuzano the importance of third-country nationals’ integration by stating that ‘the principal purpose of Directive 2003/109 is the integration of third-country nationals who are settled on a long-term basis in the Member States’.77

9.3.4 Conclusions regarding the Different Levels of ‘Legal Otherness’ in the Context of Expulsion The Court’s case law has modified EU and third-country nationals’ protection against expulsion and thereby altered their degree of ‘legal otherness’. A core principle of EU citizens’ protection against expulsion, according to which the personal conduct of the individual concerned must constitute a genuine, present, and sufficiently serious threat to a fundamental interest of society,78 has been extended to Turkish citizens79 and long-term resident third-country nationals.80 However, unlike the 74 75 76 77 78 79

80

Case C-371/08, Ziebell ECLI:EU:C:2011:809, para. 82. Ibid. Ibid., para. 83. Case C‑636/16, López Pastuzano ECLI:EU:C:2017:949, para. 23. Art. 27(2) of the Citizenship Directive. Case C-303/08, Metin Bozkurt ECLI:EU:C:2010:800, para. 61; Case C-371/08, Ziebell ECLI:EU:C:2011:809, para. 82. Case C‑636/16, López Pastuzano ECLI:EU:C:2017:949, para. 27.

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.   & - 



Citizenship Directive, which provides for a three-tier system of protection against expulsion that incrementally increases every five years, the provisions governing Turkish citizens’ and long-term resident thirdcountry nationals’ protection against expulsion do not grant a gradually rising level of protection.81 After five years of lawful and continuous residence on the territory of a Member State, third-country nationals acquire a long-term resident status and are afforded a reinforced protection against expulsion by Article 12 of the LTR-Directive. The level of protection provided for by the Association Council Decision No 1/80 and by the LTR-Directive is linear. Even though the LTR-Directive stipulates that the duration of residence shall be taken into account in the balancing process between the interests of the individual and the interests of the state,82 it falls short of providing an increased protection in relation to the third-country nationals’ duration of residence that exceeds the protection provided for by Article 12. In light of the erosion of EU citizens’ protection against expulsion, Kostakopoulou and Ferreira noted in 2014 that EU citizenship ‘approximates third-country national long-term resident status’.83 While EU citizens’ layered protection against expulsion has been levelled off, third-country nationals’ protection against expulsion has been reinforced, which has led to a convergence of the levels of protection against expulsion and an approximation of the levels of ‘legal otherness’. On the one hand, this convergence yields positive effects, as it implies a strengthening of third-country nationals’ protection against expulsion and an increase of their security of residence, which is key to a successful integration policy.84 On the other hand, this convergence also yields negative effects, as it implies a weakening of EU citizens’ protection against expulsion, which results in a decrease of their security of residence and an increase of their ‘legal otherness’. This development broadens the gap between nationals and non-nationals and makes the group of foreigners more visible by underlining their differentness.

81 82 83 84

Kostakopoulou and Ferreira, ‘Testing Liberal Norms’, p. 178. See Art. 12(3)(a) of the LTR-Directive. Kostakopoulou and Ferreira, ‘Testing Liberal Norms’, p. 176. D. Acosta, The Long-Term Resident Status as a Subsidiary Form of EU Citizenship, An Analysis of Directive 2003/109 (Leiden: Martinus Nijhoff Publishers, 2011), p. 138.

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

   ‘ ’

9.4

Entry Bans and the Schengen-Information System

The exclusion of non-nationals from the national territory by way of an entry ban constitutes an unequivocal expression of their ‘legal otherness’ and a particularly harsh one, as it can bar the foreigner from returning to the territory of the expelling state for several years. Entry bans can be issued for the national territory, but they can also be given a European dimension by creating an alert into the Schengen Information System (SIS). The legal instruments that can give a European effect to a national expulsion decision are Regulation (EU) 2018/186185 (hereinafter: SISRegulation) and Directive 2008/115/EC86 (hereinafter: Return Directive). A foreigner who is subject to an SIS-alert for the refusal of entry and stay87 is barred from entering the territory of all Schengen States.88 A Schengen-wide entry ban can only be imposed on third-country nationals,89 as EU citizens enjoy the fundamental right of free movement and residence in the EU, which would be thwarted by a Schengen-wide entry ban. Nonetheless, EU citizens can be subject to a national entry ban, which is a clear expression of their ‘legal otherness’. National entry bans are capable of undermining and even destroying EU citizens’ personal, cultural, social, and economic ties with that Member State and are thereby diametrically opposed to the EU’s aim of fostering integration, which is, as Koutrakos points out, next to social cohesion, central to the logic of the Citizenship Directive.90 While EU citizens and third-country nationals remain ‘others’ in the context of expulsion decisions and national entry bans, SIS-alerts draw a different demarcation line and separate EU citizens and third-country nationals. Third-country nationals find themselves in the group of the ‘outsiders’, while EU citizens and nationals are placed in the group of 85

86

87

88

89 90

Council Regulation (EU) 2018/1861 of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No 1987/2006, OJ No. L312/14, 7 December 2018. Council Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ No. L348/98, 24 December 2008. See Art. 24 of SIS-Regulation and Art. 11(1) of the Return Directive in conjunction with Art. 24(1)(b) of the SIS-Regulation. Art. 6(1)(e) Art. 14(1) of Council Regulation (EU) 2016/399 of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ No. L77/1, 23 March 2016. See 2(1) of the SIS-Regulation. Koutrakos, ‘Public Security Exceptions and EU Free Movement Law’, p. 202.

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.   & - 



‘those who belong’, as they cannot be subject to a Schengen-wide entry ban. These differences in the legal position of EU citizens in the context of expulsion decisions and Schengen-wide entry bans exemplify the plurality of boundaries and levels of (non-)membership that are created by the intertwined and multi-layered legal orders. While third-country nationals can be subject to SIS-alerts, the exact scope of the SIS-Regulation and the Return Directive remains unclear. The Return Directive excludes third-country national family members of EU citizens from its scope,91 whereas the newly adopted SIS-Regulation still authorises Member States to enter alerts regarding this group of foreigners.92 Despite Member States’ capacity to enter third-country national family members into the SIS, the CJEU established additional safeguards,93 which are partly codified in the new SIS-Regulation.94 Already in 2006 the Court stipulated that an SIS-alert regarding a third-country national family member of an EU citizen can only be issued if the individual concerned poses a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society.95 The same condition has to be met if a Member State seeks to refuse a third-country national family member of an EU citizen access to its territory on the basis of an SIS-alert.96 In the context of the Return Directive, the Court has adopted a similar approach. It reiterated Recital 6 of the preamble to the Return Directive, which provides that decisions should be adopted on a case-by-case basis, and held that all stages of the return procedure must comply with the principle of proportionality.97 Moreover, the Court interpreted the notion of a ‘risk to public policy’ in Article 7(4) of the Return Directive, which sets out the requirements for denying an illegally staying thirdcountry national a period of voluntary departure, and held that this notion requires that the ‘personal conduct of the third-country national concerned poses a genuine and present risk to public policy’.98 Even

91

92 93 94

95 96 97 98

See Art. 2(3) of the Return Directive in conjunction with Art. 2(5)(a) of the Schengen Borders Code (Regulation (EU) 2016/399). See Art. 3(4) of the SIS-Regulation. Case C-503/03, Commission v. Spain ECLI:EU:C:2006:74. See in particular Art. 24(1), which established the requirement of an individual assessment. Case C-503/03, Commission v. Spain ECLI:EU:C:2006:74, paras. 55, 59. Ibid., para. 52. Case C‑554/13, Zh. and O. ECLI:EU:C:2015:377, para. 49. Ibid., para. 50; Case C‑240/17, E. ECLI:EU:C:2018:8, para. 49.

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

   ‘ ’

though it does not directly concern the issuance of an entry ban, this interpretation demonstrates the Court’s general approach, which seeks to enhance coherence by providing a uniform interpretation to the notion of public policy, irrespective of whether it concerns EU citizens or thirdcountry nationals.99

9.5 Conclusions The EU legislature has afforded EU citizens an enhanced protection against expulsion and thereby a reinforced security of residence, which fosters their preparedness to integrate into the society of the ‘host’ Member State. At the same time, EU citizens remain ‘others’, as their membership in society and their presence on the territory of the ‘host’ Member State can unilaterally be terminated by that State. Meduna rightly observes that EU citizens cannot always rely on their EU citizenship to protect themselves from expulsion100 and notes that ‘EU citizenship has yet to make its major breakthrough here’.101 The CJEU’s case law, however, does not seem to promote this breakthrough, as it points in the opposite direction by strengthening Member States’ discretion to expel EU citizens. This development risks impeding EU citizens’ integration into the society of the ‘host’ Member State,102 a term that vividly underlines their ‘otherness’ by clarifying that this state cannot be considered their home. Simultaneously, the Court has enhanced third-country nationals’ protection against expulsion by applying the general principles of EU citizens’ protection against expulsion to Turkish nationals and long-term resident third-country nationals. The resulting convergence of statuses and the levelling of the different degrees of ‘legal otherness’ yields positive effects, as it promotes a simplification of administrative processes at the Member State level and a reduction of the different degrees of ‘legal otherness’ within the group of foreigners. On the other hand, this convergence has negative effects, as it implies an erosion of EU citizens’ protection against expulsion, which deepens the gap between nationals and non-nationals and emphasises the distinctness of the latter group.

99 100 101 102

See also B. Queiroz, Illegally Staying in the EU (Oxford: Hart Publishing, 2018), p. 58. Meduna, ‘Scelestus Europeus Sum’, p. 412. Ibid., p. 414. Defined in Art. 2(3) of the Citizenship Directive.

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. 



The exclusionary effects of expulsion decisions are exacerbated by entry bans, which bar foreigners from returning to the expelling state’s territory, sometimes even for years. In contrast to EU citizens, who can only be subject to national entry bans, third-country nationals can additionally be banned from entering the entire Schengen Area, which constitutes a particularly strong expression of their ‘legal otherness’. While EU citizens remain ‘legal others’ in the context of expulsion decisions and national entry bans, their ‘otherness’ changes in the context of Schengen-wide entry bans, as they are placed in the group of those who belong. Despite the positive developments regarding third-country nationals’ protection against expulsion, the parallel erosion of EU citizens’ protection remains a cause for concern. Even though EU citizens enjoy equal treatment with nationals, they will remain unequal and, therefore, outsiders as long as they lack a truly secure residence status equal to that of nationals. In the absence of a secure residence status, any person, irrespective of her or his nationality, will always feel like ‘the other’ and will never be fully integrated.

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10 The Non-national as ‘The Other’ What Role for Non-discrimination Law?

          

10.1

Introduction

After over 5 years of fighting for a normal life we know what it means to have to live on the streets or to move from one derelict building to the other. It means that you lose all the time, that you come to miss all purpose in life, that you are mentally wrecked. Six of us have already lost their lives. The pressure is building up. It is there for everyone to see. A solution is needed now.1

The above statement comes from ‘We are here’ Amsterdam, a collective of people who came to the Netherlands from countries such as Somalia, Eritrea, and Afghanistan but who were denied permission to stay. The statement illustrates the plight of those for whom the nationality they received at birth does not represent an entitlement to safety or even to basic living standards in their country of residence. It shows how the fact of having one nationality rather than another has a serious impact on people’s lives and life chances. The chapters in this book provide many other examples of the ways in which national and European immigration regimes separate people into citizens and foreigners and into different types of foreigners, directly affecting their eligibility to access the territories and welfare schemes of EU Member States. Despite the obvious inequalities faced by non-nationals in the EU, little attention has thus far been paid to the compatibility of nationalitybased distinctions with the human right to non-discrimination.2 Unlike 1

2

Quote taken from the news item ‘We are here’ Amsterdam, 24 March 2018, ‘Wij Zijn Hier kraakt pand met moeder en twee kinderen’, www.wijzijnhier.org, last accessed 13 May 2019. The translation is my own. But see O. De Schutter, Links between Migration and Discrimination. A Legal Analysis of the Situation in EU Member States (report prepared for the European Commission) (Luxembourg: Publications Office of the European Union, 2016), available at www.equalitylaw.eu.



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.    



sex, race, and disability, nationality is not commonly recognised as a suspect discrimination ground inviting strict scrutiny of the reasons supporting any difference in treatment between groups or individuals. Protection against nationality discrimination is occasionally granted, including under Article 14 of the European Convention on Human Rights (ECHR). Yet the existing legal framework is patchy and important actors, including the European Court of Human Rights (ECtHR), have thus far failed to explain why protection is granted in some situations but not in others. This chapter contends that enhanced protection against nationality discrimination is possible and desirable. It shows that, like race and sex, nationality serves to stigmatise groups of people and to legitimise their exclusion from the rights and benefits enjoyed by others. Based on an anti-stigmatisation approach to non-discrimination law, this chapter argues that non-discrimination norms should strive to alleviate the inequalities resulting from distinctions based on nationality, while staying mindful of nationality’s legitimate function in maintaining viable political communities. By considering nationality as a carrier of stigma this chapter explains why, when, and how non-discrimination law has a role to play in countering the ‘othering’ of non-nationals. The chapter starts by explaining the link between nationality and inequality. It then provides a brief account of the protection against nationality discrimination offered by existing non-discrimination norms. The chapter then turns to the main features of the anti-stigmatisation approach in non-discrimination law and applies it to nationality as a discrimination ground. The outlines of a new approach to nationality discrimination are presented in Section 10.5.

10.2

The Inequalities of Nationality

The European Convention on Nationality defines nationality as ‘the legal bond between a person and a state’.3 This legal bond represents a ticket to membership including: (1) access to the territory of the state concerned, and (2) access, on an equal footing with other nationals, to the full package of rights and resources provided by that state. The other side of the coin is that states may refuse access to territory, rights, and

3

Art. 2(a) of the European Convention on Nationality, ETS No. 166.

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

 -  ‘ ’

resources to non-nationals.4 In the EU Member States, with which this book is concerned, this system of membership-based-on-nationality has not resulted in a binary, all-or-nothing distinction between nationals and non-nationals. All Member States, partly driven by EU legislation on free movement and immigration and case law of the ECtHR, have enacted a variety of legal statuses entitling different groups of non-nationals to be admitted and to enjoy more or less extensive packages of rights, depending on their residence purpose and length of stay.5 Yet even the best of these statuses fall short of full membership. The result is that inequalities continue to exist between nationals and non-nationals, and between non-nationals with different residence statuses, across many fields, including healthcare, housing, employment, and social security. Even non-nationals with a generally privileged status, such as EU citizens using their right of free movement, are subject to the important restriction of not being allowed to vote in national elections.6 On the other side of the spectrum, asylum seekers and irregular migrants are often excluded from all but the most basic rights and provisions.7 In theory, the exclusion of foreign nationals from full membership in (other) EU Member States should not result in inequality. After all, the underlying system of membership-based-on-nationality presupposes that immigrants to the EU have access to the territory, rights, and resources of the state of which they are nationals. Arguably the main reason why nationality is not commonly recognised as a prohibited ground of discrimination is the often unarticulated assumption that in case of need foreign immigrants can turn to the state of their nationality. Upon articulation, however, this assumption quickly falls apart: it is obvious that the quality of membership, at least in terms of access to resources 4

5

6 7

The link between nationality and access to territory is clearly expressed in Art. 3 Fourth Protocol ECHR, which lays down a right of entry and prohibition of expulsion exclusively for nationals. The legal power of states to exercise immigration control over non-nationals is explicit in Art. 13 ICCPR, which allows the expulsion of lawfully residing aliens, subject to procedural guarantees. See also Section 2.2 by Jesse. For an early account see R. Brubaker, ‘Membership without Citizenship’, in R. Brubaker (ed.), Immigration and the Politics of Citizenship in Europe and North America (Lanham: University Press of America, 1989). For a current overview of EU law governing the status of resident third-country nationals see De Schutter, Links between Migration and Discrimination, pp. 40–59. See on the limits of solidarity, Sections 9.2 and 9.3 by Hamenstädt. De Schutter, Links between Migration and Discrimination, pp. 40–59. See also P. Boeles, M. den Heijer, G. Lodder, and K. Wouters, European Migration Law (Antwerp: Intersentia, 2009).

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.  



and protection of fundamental rights, differs greatly between states around the world.8 The life chances of Canadian residents may be comparable to those of Dutch residents, so when a person living in Canada is denied admission to The Netherlands this does not leave her in a position of inequality compared to someone living in that country.9 However it is an obvious inequality that a resident of The Netherlands has an average life expectancy of almost 82 years, whereas for a resident of Sierra Leone this is only 49.10 Nationality plays a key role in keeping such inequalities in place, as it allows the governments of affluent states to limit access to their territories and resources by applying restrictive immigration policies to non-nationals, especially those from poorer countries.11 The effect of nationality-based restrictions on foreign nationals in the EU cannot be properly understood without taking into account the distant but inescapable background of global inequality.

10.3

Current Responses from Non-discrimination Law

This section examines the current status of nationality in nondiscrimination law. It focuses on the non-discrimination norms in the ECHR and EU law because they constitute minimum standards to be upheld by all EU Member States. It will be shown that the ECtHR only partly recognises nationality as a suspect discrimination ground, whereas EU law does so only for differences in treatment between nationals of EU Member States.

10.3.1 Nationality Discrimination under the ECHR Discrimination is prohibited in Article 14 ECHR and Article 1 Twelfth Protocol ECHR. The latter provision is broader in scope as it also applies to differences in treatment that do not concern the exercise of substantive Convention rights. However, it has been ratified by only 10 out of the 8

9

10 11

A. Shachar, The Birthright Lottery. Citizenship and Global Inequality (Cambridge, MA: Harvard University Press, 2009), pp. 24–27. World Health Organisation, World Health Statistics 2016, Annex B, available at www .who.int/gho/publications/world_health_statistics/2016/Annex_B/en/, last accessed 16 June 2020. Ibid. Shachar, Birthright Lottery, pp. 10–11; T. Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the Externalisation of Migration Control’ (2018) 20(4) European Journal of Migration and Law, 452–469.

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

 -  ‘ ’

current 28 EU Member States.12 Apart from their material scope, Article 14 and Article 1 Twelfth Protocol define the prohibition of discrimination in the same way. Both articles contain so-called open provisions, meaning that the listing of prohibited discrimination grounds is not exhaustive. While nationality is not expressly mentioned in the provisions, the ECtHR has found the prohibition of discrimination to be applicable in cases where non-nationals were excluded from rights or benefits accorded to nationals. In the landmark case of Gaygusuz v. Austria the Court held that the Austrian government had violated Articles 14 and 1 First Protocol (the right to property) by denying unemployment benefits to a foreign national. In this case the Court stated that differences in treatment based on nationality require ‘very weighty reasons’ in order to be justified.13 This formulation indicates strict scrutiny of the unequal treatment involved, usually ending in the finding of a violation. The application of the ‘very weighty reasons’ test to nationality discrimination was repeated in later cases concerning social benefits and access to secondary education.14 It also occurs that the ECtHR exercises strict scrutiny of differences in treatment affecting non-nationals without expressly naming nationality as a suspect ground. This happened in A. and others v. the United Kingdom, where the Court found a violation of Article 5(1) ECHR (the prohibition of unlawful detention) on the grounds that the detention regime for suspected terrorists ‘discriminated unjustifiably between nationals and non-nationals’.15 And in Anakomba Yula the ECtHR condemned the Belgian government for imposing legal fees on an undocumented migrant involved in proceedings to contest the paternity of her daughter. Although the Court did not specify the relevant discrimination ground, it applied the very weighty reasons test because of the importance of the right at stake.16 12

13 14

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16

www.coe.int/en/web/conventions/search-on-treaties/-/conventions/treaty/177, last accessed 20 August 2019. Gaygusuz v. Austria, ECtHR 16 September 1996, app.no. 17371/90, para 42. Koua Poirrez v. France, ECtHR 30 September 2003, app.no. 40892/98, para 46; Luczak v. Poland, ECtHR 27 November 2007, app.no. 77782/01, para 48; Andrejeva v. Latvia, ECtHR (Grand Chamber) 18 February 2009, app.no. 55707/00, para 87; Zeïbek v. Greece, ECtHR 9 July 2009, app.no. 46368/06, para 46; Fawsie v. Greece, ECtHR 28 October 2010, app.no. 40080/07, para 35; Saidoun v. Greece, ECtHR 28 October 2010, app.no. 40083/07, para 37; Ponomaryovi v. Bulgaria, ECtHR 21 June 2011, app.no. 5335/05, para 52; Dhahbi v. Italy, ECtHR 8 April 2014, app.no. 17120/09, para 53. A. and others v. the United Kingdom, ECtHR (Grand Chamber) 19 February 2009, app. no. 3455/05, para 190. Anakomba Yula v. Belgium, ECtHR 10 March 2009, app.no. 45413/07, para 37.

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.  



Meanwhile, other cases show the Court accepting differences in treatment based on nationality without much scrutiny. In Moustaquim v. Belgium, concerning a Moroccan national who had legally resided in Belgium since the age of two and faced deportation at age 21, the ECtHR decided that the applicant had no right to equal treatment with Belgian nationals because the latter ‘have a right of abode in their own country and cannot be expelled from it’.17 In the same judgement the Court accepted rather easily that the applicant was treated differently from juvenile delinquents who were citizens of an EU (then EEC) Member State and were therefore protected from deportation.18 Other cases in which the Court did not apply strict scrutiny to unequal treatment of foreign nationals are Bigaeva v. Greece,19 Bah v. the United Kingdom,20 and British Gurkha Welfare Society and Others v. the United Kingdom;21 none of these cases resulted in the finding of a violation of Article 14 ECHR. The ECtHR has not yet provided much rationale for its treatment of nationality as a discrimination ground. In several cases where it applied the very weighty reasons test the Court noted that the applicants had been long term legal residents of the host states and had contributed in the same way as nationals to the relevant social security schemes.22 In the same vein, it stated in some of the more recent cases that ‘a State may have legitimate reasons for curtailing the use of resource-hungry public services, such as welfare programmes, public benefits and health care, by short term and illegal immigrants, who, as a rule, do not contribute to their funding’.23 These considerations show that the Court has already gone some way towards recognising the arbitrariness of distinctions based on nationality, notably for foreign nationals who are long-term 17 18 19 20 21

22

23

Moustaquim v. Belgium, ECtHR 18 February 1991, app.no. 12313/86, para 49. Idem. See also C. v. Belgium, ECtHR 7 August 1996, app.no. 21794/93, para 38. Bigaeva v. Greece, ECtHR 28 May 2009, app.no. 26713/05, para 40. Bah v. the United Kingdom, ECtHR 27 September 2011, app.no. 56328/07, para 49. British Gurkha Welfare Society and Others v. the United Kingdom, ECtHR 15 September 2016, app.no. 44818/11, para 81. In this case the Court confirmed the applicability of the very weighty reasons test to differences based on nationality, but subsequently mitigated the level of its scrutiny because the case also concerned ‘general measures of economic or social strategy’. Gaygusuz v. Austria, ECtHR 16 September 1996, app.no. 17371/90, para 46; Dhahbi v. Italy, ECtHR 8 April 2014, app.no. 17120/09, para 52. Ponomaryovi v. Bulgaria, ECtHR 21 June 2011, app.no. 5335/05, para 54; Bah v. the United Kingdom, ECtHR 27 September 2011, app.no. 56328/07, para 49; Dhahbi v. Italy, ECtHR 8 April 2014, app.no. 17120/09, para 52.

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

 -  ‘ ’

residents of their host state and have made economic contributions to the host society. However this is not always the case: in Moustaquim the ECtHR allowed the applicant’s deportation despite the fact that he had been a lawful resident of the host state from a very young age. Moreover, what remains unquestioned is the role that nationality plays in excluding many other non-nationals who are not eligible for (long term) legal residence.24 Where nationality is not recognised as a suspect discrimination ground, the inequalities experienced by foreign immigrants are often accepted without much justification.

10.3.2

Nationality Discrimination in EU Law

Article 18 of the Treaty on the Functioning of the European Union (TFEU) reads: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. This article presents, at first sight, a clear barrier to nationality discrimination. Yet its scope of application remains restricted to differences in treatment between EU citizens with different nationalities, to the exclusion of third-country nationals.25 With the adoption of the EU Charter of Fundamental Rights, the prohibition of nationality discrimination from the TFEU has been copy-pasted into Article 21(2) of the Charter. It can be argued that the insertion of this provision into the Charter gives it the character of a fundamental rights norm, the application of which is not limited to EU citizens. However the General Court of the EU Court of Justice determined in 2017 that Article 21(2) of the Charter ‘must be construed as having the same scope as the first paragraph of Article 18 TFEU’ and that, accordingly, it is not applicable in cases of potential discrimination between third-country nationals and nationals of the Member States.26 Besides Article 18 TFEU and Article 21 Charter of Fundamental Rights the prohibition of discrimination has been codified in EU secondary law, notably the Racial Equality Directive (2000/43/EC) and the 24

25

26

See also M.-B. Dembour, ‘Gaygusuz Revisited: The Limits of the European Court of Human Rights’ Equality Agenda’ (2012) 12(4) Human Rights Law Review, 689–721. CJEU 4 June 2009, Joined cases C-22/08 and C-23/08, Vatsouras and Koupatantze v. ARGE ECLI:EU:C:2009:344, para 52. GC 20 November 2017, Case C-618/15, Udo Voigt v. European Parliament ECLI:EU: T:2017:821, paras 80–81 and GC 20 November 2017, Case C-452/15, Andrei Petrov and Others v. European Parliament ECLI:EU:T:2017:822, paras 39–40.

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Framework Directive (2000/78/EC). The legislative basis for both directives is Article 19(1) TFEU, which lists a number of discrimination grounds but not nationality. Instead, both directives expressly exclude differences in treatment on the basis of nationality from their scope of application.27 An identical clause is included in the proposal for a revised Framework Directive.28 It follows that, other than for EU citizens, EU law does not recognise nationality as being a prohibited discrimination ground.

10.4 An Anti-stigmatisation Approach Section 10.3 showed that the prohibition of discrimination in the ECHR covers some of the inequalities experienced by non-nationals but leaves others – including some of the more serious - untouched. This section argues that legal protection against nationality discrimination can be improved by focusing on the stigmatising effects of nationality. The anti-stigmatisation approach applied in this section has been suggested by scholars of non-discrimination law as a way of identifying forms of inequality that amount to discrimination and should be subject to legal intervention. Sections 10.4.1 and 10.4.2 first explain what the antistigmatisation approach entails and then explore how it could guide the response of non-discrimination law to nationality discrimination.

10.4.1 The Anti-stigmatisation Approach Recent scholarship on European non-discrimination law increasingly views stereotyping and stigmatisation as the root causes of discrimination.29 Traditionally, immutability has played an important role in explaining the classification of certain features or characteristics as suspect discrimination grounds.30 Thus, differences in treatment on the

27 28

29

30

Art. 3(2) Racial Equality Directive and Art. 3(2) Framework Directive. COM(2008) 426 final, at the time of writing the proposal was subject to negotiations in the Council, see Council doc. 8812/19 of 8 May 2019. A. M. Arnardóttir, ‘The Differences That Make a Difference: Recent Developments in the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights’ (2014) 14(4) Human Rights Law Review, 647–670; A. Timmer, ‘Toward an Anti-stereotyping Approach for the European Court of Human Rights’ (2011) 11(4) Human Rights Law Review, 707–738; I. Solanke, Discrimination as Stigma. A Theory of Anti-discrimination Law (Oxford: Hart Publishing, 2017). S. Fredman, Discrimination Law (Oxford: Oxford University Press, 2011), pp. 131–134; Solanke, Discrimination as Stigma, pp. 54–60.

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

 -  ‘ ’

grounds of sex or disability are considered discriminatory because these are personal attributes that are impossible or very difficult to change. By contrast, the anti-stereotyping and anti-stigmatisation approaches that are currently gaining ground explain the relevance of discrimination grounds in terms of the social meaning attributed to them and the relations of power that this social meaning helps to reproduce.31 Solanke explains that stigmatisation occurs when particular traits or attributes become social labels that are used to classify people into groups and are subsequently imbued with negative stereotypes, legitimising the exclusion of the targeted groups from key resources. Such stereotypes typically involve arbitrary notions about the attributes concerned, such as ‘fat people are lazy’ or ‘women are incapable of leadership’.32 Solanke further stresses the role of power in the process of stigmatisation: without power the labels and stereotypes created by one group about another do not result in actual disadvantage, whether loss of status or exclusion from resources.33

10.4.2

Nationality As Stigma?

Does nationality constitute a stigmatised attribute? If so, an antistigmatisation approach to non-discrimination law would prescribe including nationality as a suspect discrimination ground. This section examines nationality in light of the elements of stigma mentioned in Section 10.4.1: an unequal power relationship, negative stereotyping, and exclusion from key resources. It argues that nationality does indeed serve to maintain a hierarchy between different segments of the global population, which is maintained by negative stereotypes and results in those belonging to (relatively) powerless groups being excluded from resources both within and outside the EU Member States. However, the differences in treatment resulting from nationality are not always arbitrary because nationality serves the purpose of maintaining bounded political communities within which democratic decisions can be taken and rights can be enjoyed. It will be argued that insights from political theory on 31

32 33

My understanding of the anti-stigmatisation approach is also inspired by the work of Rikki Holtmaat. Although she does not expressly use the vocabulary of anti-stereotyping or anti-stigmatisation, Holtmaat also considers power differences and stereotypes as key features of discrimination. See R. Holtmaat, Grenzen aan gelijkheid (The Hague: Boom Juridische uitgevers, 2004), p. 9. Solanke, Discrimination as Stigma, pp. 162–163. Ibid., pp. 34–36.

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

citizenship and migration can help to determine in which cases nationality constitutes a valid and necessary boundary and when, on the contrary, it is merely a stigma that non-discrimination law should seek to eliminate.

10.4.2.1 Unequal Power Power constitutes a crucial element in the production and perpetuation of stigma. Solanke explains that the power structures underpinning stigma can be social, economic, or political and that power is expressed through actual force, through rules and institutional structures as well as through (cultural) narratives legitimising its unequal distribution.34 Power is relevant to stigma because groups that are relatively powerful or dominant get to determine which stereotypes or labels become socially salient; by contrast groups with no or little power cannot lend force or social impact to any stereotypes held by their members about other groups. The power criterion leads to the question of whether nationality serves to maintain a hierarchy between social groups. Put differently: are there groups that benefit from the sustention of a legal/political system based on nationality while this system works to the disadvantage of others? This subsection argues that this is indeed the case. An apt illustration of the hierarchy created through nationality is provided by the Quality of Nationality Index (QNI).35 This index measures the value of any particular nationality by looking at the resources to which it gives access, both within the country of nationality and in other countries through treaties or free movement regimes. Resources are taken to include human development, economic prosperity, and peace and stability.36 The index makes it clear that the value offered by different nationalities is by no means equal and allows one to identify ‘good’ and ‘bad’ nationalities at either end of the spectrum. The preservation of this hierarchy is in the interest of those who have been assigned ‘good’ nationalities and depends on the boundary function fulfilled by nationality: through the recognition of some people, but not others, as nationals (or privileged aliens) the citizenries of prosperous states protect their economies and welfare state systems against the demands of those whose nationality at birth relegated them to less prosperous communities. 34 35 36

Ibid. See www.nationalityindex.com, last accessed 30 August 2019. www.nationalityindex.com/methodology, last accessed 30 August 2019.

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

 -  ‘ ’

The continued relevance and legal effect of nationality attests to the dominance of groups with ‘good’ nationalities over those with ‘bad’ nationalities. The power of the dominant group is reflected in the international legal system that has marked control over immigration as a sovereign power, the exercise of which is not subject to justification.37 This is clearly expressed in a frequently used consideration of the ECtHR, according to which ‘a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there’.38 The existing hierarchy is further legitimised by the notion that states are equally sovereign, implying that nationals of all states are equal in their capacity as members of sovereign communities. This formal equality discourse blurs the fact that some nationalities offer far less access to resources and lower life chances than others.39 However, the power of dominant groups is not only discursive and institutional. Where necessary the prerogative of immigration control over non-nationals is upheld by force. This can be witnessed at border points between the territories of rich and poor states, including at the Mexican–American border and in several border regions around the Mediterranean.

10.4.2.2 Stereotyping A large amount of academic literature, including from the field of ethnic and racial studies, attests to the existence in social and political discourses throughout Europe of stereotypes about groups of non-nationals that legitimise their exclusion from the territory or welfare programmes of receiving states. Such stereotypes question the contribution of specific groups of non-nationals to the host society or portray them as a threat to the host state’s population. For example, a study about the perception of labour migrants from Central and Eastern Europe in the Netherlands showed that Polish workers were seen as hard-working but also as ‘stealing’ jobs from the native population, abusing the social welfare system and prone to committing crime and disrupting public order.40 37

38

39

40

B. Schotel, On the Right of Exclusion. Law, Ethics and Immigration Policy (New York: Routledge, 2012), pp. 27–32. E.g. ECtHR (Grand Chamber) 3 October 2014, app.no. 12738/10, Jeunesse v. the Netherlands, para 100. Shachar, Birthright Lottery, p. 9. See also N. Fraser, ‘Reframing Justice in a Globalizing World’ (2005) 36(1) New Left Review, p. 78. I. Andriessen and J. Dagevos, ‘Tegenpolen. Hoe de bevolking denkt over migranten uit Midden- en Oost-Europa en hoe migranten uit Midden- en Oost-Europa denken over (de

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Another prevalent stereotype concerns the (in)capacity of foreign nationals to integrate in the host society.41 This kind of stereotype was at issue in the case of Biao v. Denmark that came before the ECtHR’s Grand Chamber in 2016. The case concerned Danish legislation restricting family reunification of foreign nationals and naturalised Danish citizens, based on the argument that they were prone to marrying a partner from the country of origin due to parental pressure. It was moreover assumed that family reunification by non-nationals and Danes of foreign origin would entail ‘major problems’ in the field of integration.42 Besides labour and family migrants, refugees and asylum seekers are frequently subject to stereotypes casting them as ‘invaders’ or ‘a danger to existing communities’.43 Discourses about the latter groups tend to be especially negative and punitive: the 2019 annual report of the EU Fundamental Rights Agency observes that political hate speech and right-wing extremism against refugees have become mainstream.44 Both Holtmaat and Solanke consider that discrimination and stigmatisation involve stereotypes that the targeted groups cannot escape.45 While nationality is not an immutable characteristic in the strict sense, most if not all states have procedures for obtaining their nationality other than through birth, the option of changing nationality so as to evade negative stereotypes is not readily available to most foreign nationals. Conditions for naturalisation usually include a certain period of lawful residence, in addition to requirements relating to integration and the absence of a criminal record. Other procedures for obtaining nationality are limited to particular groups, such as spouses or other relatives of nationals, or tied to specific contributions, for example military service or

41

42 43

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kansen in) Nederland’, in S. Bonjour, L. Coello-Eertink, J. Dagevos, C. Huinder, A. Odé, and K. de Vries (eds.), Open grenzen, nieuwe uitdagingen. Arbeidsmigratie uit Midden- en Oost-Europa (Amsterdam: Amsterdam University Press, 2015), pp. 55–78. E.g. S. Bonjour and J. W. Duyvendak, ‘The “Migrant with Poor Prospects”: Racialized Intersections of Class and Culture in Dutch Civic Integration Debates’ (2018) 41(5) Ethnic and Racial Studies, 882–900. ECtHR (Grand Chamber) 24 May 2016, app.no. 38590/10, para 30. See, for example, I. Tyler, ‘The Hieroglyphics of the Border: Racial Stigma in Neoliberal Europe’ (2018) 41(10) Ethnic and Racial Studies, 1783–1801. European Union Agency for Fundamental Rights, Fundamental Rights Report 2019, available at https://fra.europa.eu/en/publication/2019/fundamental-rights-report-2019, last accessed 16 June 2020. Holtmaat, Grenzen aan gelijkheid, p. 9; Solanke, Discrimination as Stigma, p. 37.

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

 -  ‘ ’

substantial investment.46 It could be argued that foreign nationals can avoid becoming part of a stereotyped category of migrants by staying in the country of their nationality. However, for those who are nationals of poor and/or unsafe states this would imply remaining stuck in their position of disadvantage. In many cases therefore the negative stereotypes attached to nationality cannot be avoided or, to use Solanke’s term, ‘wished away’ without great cost to those to whom they apply.

10.4.2.3 Exclusion The third criterion by which to recognise stigmatised attributes is that they result in the exclusion of groups from key resources such as employment, education, healthcare, and political power, especially when these resources are denied simultaneously.47 The exclusionary function of nationality was already highlighted in Section 10.2: nationality defines membership in a state and thus excludes from full membership, including the resources mentioned connected to nationality, those who are not nationals of the state concerned. Most common, while also least contested, is the exclusion of non-nationals from electoral rights (active and passive) at the national level. While it is fairly usual, at least for legally residing non-nationals, to be granted voting rights at local or regional levels, it is highly exceptional for them to be allowed to participate in national elections.48 With regard to other key resources, the exclusion of non-nationals varies greatly depending on the legal status of the person concerned.49 Within the EU Member States, as noted in Section 10.2, the level of exclusion faced by foreign migrants can be placed on a continuum with EU citizens with free movement rights on the one end and undocumented migrants on the other. Third-country nationals with long term residence status are relatively well-off, as are recognised refugees, while asylum seekers are closer to the lower end of the continuum. However, it was explained that the exclusion faced by foreign migrants 46

47 48

49

GLOBALCIT (2017). Global Database on Modes of Acquisition of Citizenship, version 1.0, San Domenico di Fiesole: Global Citizenship Observatory/Robert Schuman Centre for Advanced Studies/European University Institute, available at http://globalcit.eu/acquisi tion-citizenship, last accessed 15 June 2019. Solanke, Discrimination as Stigma, p. 163; Holtmaat, Grenzen aan gelijkheid, p. 9. R. Bauböck, ‘Expansive Citizenship – Voting beyond Territory and Membership’ (2005) 38(4) PS: Political Science and Politics, pp. 684–685. Bauböck cites New Zealand as having the most inclusive franchise, with non-citizen residents being allowed to vote in national elections after 1 year of legal residence. Compare with the findings of Chapter 7 by Idriz and Chapter 9 by Hamenstädt.

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is not only a function of the immigration regimes of receiving states. Nationals of prosperous states with good welfare programmes may be excluded from healthcare or family benefits in the EU but still have access to those resources in the country of their nationality. The same is not true for nationals of underdeveloped countries, for stateless persons, or for refugees.

10.4.2.4 Arbitrariness Recognised discrimination grounds, including race and sex, refer to features that are arbitrary as they have no real relationship to individual capacities, skills or character. This element of arbitrariness is viewed by Solanke as one of the elements of stigma.50 Arguably, one of the reasons why nationality has not been widely recognised as a suspect discrimination ground in the same way as race is that it is not equally arbitrary – nationality is significant, as will be explained here. In her book The Birthright Lottery Ayelet Shachar calls out the role of birthright citizenship in maintaining global inequality.51 Yet she, as well as other authors committed to liberal democratic principles including equality, recognises that nationality or citizenship cannot simply be done away with. The reason is that political self-determination cannot be realised in the absence of bounded communities.52 Nationality both excludes and includes as it defines who are members of a political community, giving them a stake in its political process and entitling them to the protection, by that community, of their fundamental rights. It is, to borrow Linda Bosniak’s phrase, ‘hard on the outside and soft on the inside’.53 Without nationality people would no longer be outsiders, but they could not be insiders either. This means that nationality is in fact a necessary characteristic when it comes to enabling political membership. What is arbitrary, however, is the effect that being born with one nationality or the other has on people’s access to resources and subsequent life chances and the use of stereotypes to justify this unequal distribution. It follows that the need to maintain bounded political communities does not eliminate the stigma attached to nationality. 50 51 52

53

Solanke, Discrimination as Stigma, p. 162. Shachar, Birthright Lottery, p. 10–11. Ibid., p. 164. The classic argument for bounded membership of political communities is made by Michael Walzer, see M. Walzer, Spheres of Justice. A Defense of Pluralism and Equality (New York: Basic Books, 1983), pp. 31–63. L. Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton: Princeton University Press, 2006), p. 4.

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

 -  ‘ ’

Section 10.5 offers some suggestions as to how non-discrimination law can deal with this stigma.

10.5 Outlines of a New Approach Nationality meets the criteria for being regarded as a stigmatised attribute in non-discrimination law. It excludes the members of relatively powerless groups, the people with ‘bad’ nationalities, from key resources, and this exclusion is sustained through stereotypical images imposed on those groups. However nationality is not an entirely arbitrary criterion. It enables the existence of bounded political communities and therefore serves as a precondition for political participation and the protection of fundamental rights. It follows that in the interests of non-discrimination law the aim must not be to eliminate nationality altogether, just as it is not to eliminate skin colour or sex as characteristics giving rise to the stigmata of race and gender, but must be to strive for a situation where the fact of having one nationality instead of another does not make a difference to a person’s life chances and the level of respect they receive from others. The challenge is to maintain nationality as a constituent element of liberal and democratic political communities while at the same time removing, as much as possible, the exclusion and stereotyping that come with the existence of different nationalities. To borrow Linda Bosniak’s words once more, non-discrimination law should strive to let citizenship remain soft on the inside, but also a bit less hard on the outside.54 The remainder of this section proposes three steps towards this goal.

10.5.1

Protecting the Powerless

First, the recognition of nationality as a suspect discrimination ground should be asymmetric, meaning that distinctions based on nationality become subject to strict scrutiny when they result in the exclusion of groups with a relative lack of power, such as the people with ‘bad’ nationalities. This asymmetric application follows logically from the anti-stigmatisation approach, which aims to redress the disadvantage suffered by subordinate groups rather than to achieve equal treatment for all groups regardless of their position of power. In cases of potential

54

Ibid.

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.     



nationality discrimination, it should be considered whether nonnationals who are excluded from the territory or resources provided by a particular state can rely on their nationality to access those resources elsewhere, for example in the state of their nationality or in another state through bilateral agreements or free movement rights. While the classification of any particular nationality as ‘good’ or ‘bad’ will not be straightforward, guiding tools are available such as the Quality of Nationality Index55 and the Human Development Index.56 If nationality discrimination is approached in an asymmetric way this would not bring about an obligation for, say, Sweden, to provide social assistance to an undocumented migrant from Canada. On the other hand, strict scrutiny should be applied to immigration or welfare rules and decisions that exclude people with ‘bad’ nationalities and, even more so, stateless persons. Additionally, the gaze of non-discrimination law should be directed towards refugees and other beneficiaries of international protection whose nationality at birth does not grant them safe access to resources. The proposed approach has already been followed incidentally by the ECtHR. In Bah v. the United Kingdom the Court considered that the applicant’s migration to the United Kingdom had been a matter of choice, but that stricter scrutiny of her exclusion from social housing would have been indicated if she had been a refugee.57 And in Andrejeva v. Latvia the Grand Chamber observed that the applicant was a stateless persons and that the respondent state, of which she was a permanent resident, was ‘the only State with which she has any legal ties and thus the only State which, objectively, can assume responsibility for her in terms of social security’.58 Such recognition of the exclusion faced by many foreign nationals beyond the borders of the respondent state allows to more effectively tackle inequality.

10.5.2

Rebuffing Stereotypes

Second, an anti-stigmatisation approach to nationality discrimination would focus on differences in treatment that rely on negative stereotypes. 55 56

57 58

www.nationalityindex.com, last accessed 30 August 2019. World Health Organisation, World Health Statistics 2016, Annex B, available at www .who.int/gho/publications/world_health_statistics/2016/Annex_B/en/, last accessed 16 June 2020. Bah v. the United Kingdom, ECtHR 27 September 2011, app.no. 56328/07, para 47. Andrejeva v. Latvia, ECtHR (Grand Chamber) 18 February 2009, app.no. 55707/00, para 88.

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

 -  ‘ ’

Its aim would be to strike down those differentiations that are informed by images portraying refugees as dangerous, foreign workers as criminal or abusive of welfare programmes, or family migrants as incapable of integrating into western societies. In the case of Biao v. Denmark, discussed in Section 10.4.2.2, the ECtHR Grand Chamber went some way towards the proposed approach by recognising that the restrictive requirements for family reunification by Danish nationals of foreign origin amounted to a violation of Article 14 ECHR. Yet the majority of the Court failed to acknowledge the role of stereotypes underlying the Danish family reunification policy. One result of the Court’s reasoning was that the Danish legislation was only considered discriminatory for Danish nationals of foreign origin, of whom it was considered that their Danish nationality entitled them to equal treatment with ‘native Danes’. A focus on the stereotypes involved, as suggested in the concurring opinion of Judge Pinto de Albuquerque, would have allowed the Court to see that the distinction was equally discriminatory towards nonnationals living in Denmark, whose foreignness was also perceived as an obstacle to the successful integration of their families.59 At the same time, a focus on stereotypes would have allowed the Court to uphold restrictions on family reunification that are not supported by negative images about specific groups of non-nationals.

10.5.3 Recognising Social Membership Third and last, the criterion of arbitrariness in the anti-stigmatisation approach to nationality discrimination allows room for courts and other actors to give due regard to the argument that the exercise of immigration control is necessary to protect the receiving community’s capacity for self-determination. As argued above, the recognition of nationality as a stigma-carrying attribute does not deny its legitimate function in maintaining bounded polities. However, the strict scrutiny prescribed by the anti-stigmatisation approach would require an examination of the actual contribution of nationality to this goal. In this connection political theorists have argued that it is possible to maintain viable political communities while extending membership to others than nationals-bybirth. Joseph Carens and Ayelet Shachar have both argued that the legal status of being a non-national should after a number of years give way to 59

K.M. de Vries, ‘Rewriting Abdulaziz. The ECtHR Grand Chamber’s Ruling in Biao v. Denmark’ (2016) 14(4) European Journal of Migration and Law, 467–479.

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. 



the ties that foreign migrants have formed to the host society through the fact of living there. This holds true even for undocumented migrants, who despite their lack of formal status have become ‘social members’ of the societies in which they reside.60 For the assessment of cases of nationality discrimination, this would suggest that differences in treatment are no longer justified when they affect foreign migrants who have been present in the host society for a substantial period of time, notwithstanding the lawfulness of their stay.

10.6

Conclusion

This chapter defends the position that the inequalities faced by nonnationals in the EU are of concern to non-discrimination law. It argues that nationality is a carrier of stigma: it creates a category of outsiders who are seen as not entitled to, and often as not deserving of, the benefits of membership that are available to nationals. This outsider-status justifies the exclusion of foreign immigrants, to a greater or lesser extent, from access to the territory, rights and resources of EU Member States, thus the many forms of ‘othering’ described in this book. While such exclusion does not result in inequality for nationals of safe and prosperous states, it hurts those who do not have a passport that guarantees access to a safe living environment, basic living standards, and protection of their fundamental rights. The latter group, the bearers of ‘bad’ nationalities as well as stateless persons, must be considered a stigmatised group for the purpose of non-discrimination law Building on recent scholarship that has guided the focus of nondiscrimination law towards processes of stigmatisation, this chapter pleads for the recognition of nationality as a suspect discrimination ground. Such recognition would enable better legal protection for foreign migrants from poor or unsafe states who are disadvantaged by national and European immigration regimes. To a certain extent a prohibition of nationality discrimination may overlap with existing legal norms outlawing discrimination on grounds of racial or ethnic origin. However, as the EU anti-discrimination directives illustrate, distinctions on the basis of racial or ethnic origin tend to be seen as justified when they result from legal distinctions between different nationalities. The contribution of this chapter has been to highlight the nature of nationality as a 60

J. Carens, The Ethics of Immigration (Oxford: Oxford University Press, 2013), p. 157; Shachar, Birthright Lottery, pp. 184–188. The term ‘social membership’ is used by Carens.

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

 -  ‘ ’

constructed category that serves, just like ‘race’ and ‘ethnicity’, to uphold existing disparities in wealth and life chances. It does not follow that all differences in treatment based on nationality must from now on be considered discriminatory. This chapter explains that such distinctions are not always harmful, bearers of ‘good’ nationalities do not suffer disadvantage as a result of immigration restrictions in foreign states, and that any disadvantage resulting from a difference in treatment must be balanced against the need to maintain viable political communities. However, it urges for stricter scrutiny of differences in treatment that result in the exclusion of disadvantaged groups, of immigration regimes that are inspired or supported by negative stereotypes and finally of restrictions imposed on non-nationals who have attained social membership and have thus become part of the communities that the institution of nationality, legitimately, seeks to protect.

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PART III After the Arrival of the ‘Others’ – Reactions to the ‘Refugee Crisis’ of 2015

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11 The Reception of Asylum Seekers in Europe Exclusion through Accommodation Practices

 

11.1

Introduction

The governance crisis that followed the so-called summer of migration in 2015 caused many European member states to increase the use of collective accommodation. Forms of collective accommodation in larger reception facilities have been a part of the European asylum framework for a long time. This chapter deals with the ‘othering’ of asylum seekers through these accommodation practices. It showcases the exclusion and ‘othering’ of asylum seekers that is inherent in the way individuals are received in camps. I will show that through collective accommodation in remote areas and bureaucratic practices, asylum seekers are hindered from taking part in the society and are perceived as ‘others’ by the host society. To develop these arguments, the chapter will have the following structure: First, after a short introduction, I describe the methodology and case selection. Second, I discuss the question of reception at the European level as well as the implementation of reception directives within the respective national contexts of Austria and Italy. Third, I exemplify some concrete practices of boundary drawing and ‘othering’ drawn from my fieldwork in the two countries. Fourth, I conclude with a discussion of how collective reception and material reception conditions produce exclusion and isolation through ‘othering’. Mountz defines the verb ‘other’ as a way to ‘distinguish, label, categorize, name, identify, place and exclude those who do not fit a societal norm’.1 In a geographic sense, this means to place a person or a group on

This article was realised with support from the Faculty of Social Sciences at the University of Vienna. I thank the editor and my colleagues for their support and critical remarks. 1 C. Gallaher, C. Dahlman, M. Gilmartin, A. Mountz, and P. Shirlow (eds.), Key Concepts in Political Geography (Thousand Oaks: SAGE Publications Ltd., 2009) p. 328.



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

      

the margin or periphery.2 ‘Othering’ can be described as a discursive practice that forms subjects, either in hegemonic and powerful positions or in positions in which they are subjugated to power dynamics. Most of the time verbal and non-verbal acts produce this differentiation and place the respective subjects in an ‘in’ or ‘out’ group.3 This dichotomy can be found not only in legal practices and national discourses but also in daily life practices. It can be a conscious drawing of boundaries, but it can also be an unconscious practice, and the intent may not be to exclude people from taking part in society. In that sense, it can be understood as a structural mode of oppression and not as a consequence of one person’s individual decision.4 In the context of collective reception of asylum seekers, this is often the case. The two forms overlap, since reception is, on the one hand, structured by laws and rules that frame the daily life of asylum seekers; on the other hand, these rules are often implemented by social organisations and social workers who sympathise with the fate of the inhabitants of the centres but are not always free from everyday racism. To analyse the forms of ‘othering’ and drawing of boundaries in the context of collective accommodation in Italy and Austria, I rely on two theoretical frameworks. First, I use the framework of Grove and Zwi developed in research on public health and forced migration in Australia.5 They have distinguished four frames to analyse the ‘othering’ of refugees and asylum seekers. Two of these frames are particularly interesting in the European cases discussed here. The frame ‘charity and choice’ suggests, by analogy to burden sharing discourses present in the European Union, that asylum seekers are needy and dependent and that they are ‘users’ of resources in the social system.6 The second frame is ‘overload’, which in short refers to the public perception that receiving countries are overburdened due to the high influx of asylum seekers in recent years. This goes hand in hand with a steady reduction in material reception conditions7 and the argument that ‘we can offer them only the bare minimum in terms of assistance. . .’.8 2 3

4

5 6 7

8

Ibid., p. 328. N. J. Grove and A. B. Zwi, ‘Our Health and Theirs: Forced Migration, Othering, and Public Health’ (2006) 62(8) Social Science & Medicine, p. 1934. H. Nagl-Docekal (ed.), Politische Theorie: Differenz und Lebensqualität, Dt. Erstausg., 1. Aufl ed. (Frankfurt: Suhrkamp, 1996), p. 102. Grove and Zwi, ‘Our Health and Theirs’. Ibid., p. 1935. For example, see the country reports of Austria and Italy in the Asylum Information Database. Grove and Zwi, ‘Our Health and Theirs’, p. 1936 (emphasis in the original).

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.  



Secondly, I refer to concepts of legal geography that analyse the mutual constitution of legal and social worlds. Rules and regulations in the realm of asylum seeking operate as systems of power, not only deciding who can stay ‘legally’ but also exercising control over everyday life circumstances, e.g. who is to live where and how.9 In that sense, it is important to investigate how rules and regulations in collective reception facilities shape social relations inside and outside the institution. Considering both legal and social practices in reception allows us to understand how structural boundaries are drawn and redrawn in symbolic and physical ways.10

11.2

Methodological Approach

The data used for this chapter are interviews, laws, and regulations concerning reception conditions in Austria and Italy as well as documents related to reception, such as house rules. The interviews stem from two periods of ethnographic fieldwork, each carried out over a period of six weeks. The first period was in Austria from May to June 2017, and the second period was in northern Italy from May to June 2018. During these times, I was present in three collective reception facilities in Vienna and in three other regions in Austria and two large reception centres in northern Italy. Other smaller centres in the cities of Padova and Treviso were included through interviews with operators and social workers. I conducted 15 interviews, 6 in Austria and 9 in Italy, with social workers, workers in reception facilities, and administrative heads of the reception centres whenever possible (see Table 11.1). The interviews represent three layers of administrative levels, and they can therefore be related to each other to understand how policies are transformed in the process of their implementation and what impact they have on day-to-day bureaucratic practice.11 There were no formal interviews conducted with asylum seekers. I established contact with inhabitants of the centres outside the camps and most often with support groups that work directly with asylum seekers. In the environment of the support groups, my position as a 9

10 11

A. White, ‘Geographies of Asylum, Legal Knowledge and Legal Practices’ (2002) 21(8) Political Geography, p. 1056. Ibid. M. Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 1980).

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

      

Table 11.1 Interviews at reception centres Administrative heads of the asylum seekers reception unit

Social workers

Austria

2 (IA1, IA2)

1 (IA3)

Italy

1 (II1)

3 (II2, II3, II4)

Reception facility workers

Conversations with asylum seekers

3 (IA4, IA5, IA6) 5 (II5, II6, II7, II8, II9)

4

3

researcher was clearly distinguishable and distinguished, and I was introduced to people as a researcher interested in reception conditions in the respective facilities. Conversations with asylum seekers who were interested in talking to me were not recorded, but I took notes and wrote a report from memory. The choice not to conduct formal interviews with asylum seekers was made because classic interview settings are heavily prestressed by the asylum procedure. First, during the period of asylum requesting, asylum seekers must tell their stories in often hostile settings and detail intimate experiences. Second, the interview, and in consequence the history, plays a strong decision part in the asylum procedure.12 Additional materials include laws and regulations on reception conditions in the two countries at the national, regional, and local levels as well as an analysis of internal house rules and other material from the reception centres. The interviews as well as other collected materials elucidate how rules and regulations translate into social practice in the operation of daily life organisation of the reception facilities. The terms reception facilities/collective facilities/transit facilities are used in the context of European Union policy making to describe the different types of accommodation centres that have different functions. The term ‘camp’ as a category of practice allows grasping a field of contested and temporary space that produces exclusion through 12

U. Krause, Researching Forced Migration: Critical Reflections on Research Ethics during Fieldwork (Working Paper Series No. 123, Refugee Studies Center, Oxford University, 2017).

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.  



accommodation practices and the repartition of space.13 Depending on my interlocutor, workers and administrative staff often used the word facility, which reflects the technocratic and ‘neutral’ language of their professional practice, whereas the support groups and asylum seekers I talked to more often referred to camps. I will therefore use the term ‘facility’ when I write about the legal aspects of reception and the term ‘camp’ when I refer to the political meaning, being aware that they refer to different perspectives that are both present in the field.

11.3

Reception Practices in the EU, Austria, and Italy 11.3.1 Reception in the EU

Since 1990, the Common European Asylum System (CEAS) has aimed to establish a unified reception system for asylum seekers throughout member states. Two directives14 particularly influenced the European understanding of the reception of asylum seekers in the context of the CEAS. As different studies have proposed, the directive on reception conditions is tightly linked to other measures and goals that the European Union has elaborated, for example, the overall goal to delimit secondary movement of refugees among European member states.15 Two aspects have informed the development of the directives concerning reception, procedure, and qualification. On the one hand, the prior legal human rights obligations found in the Geneva Refugee Convention16 and the European Convention on Human Rights17 and,

13

14

15

16

17

S. Turner, ‘What Is a Refugee Camp? Explorations of the Limits and Effects of the Camp’ (2016) 29(2) Journal of Refugee Studies, 139–148. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ 2003 No. L3118, 6 February 2003 and Directive 2013/33/ EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ 2013 No. L180/96, 29 June 2013. E. (Lilian) Tsourdi, ‘EU Reception Conditions: A Dignified Standard of Living for Asylum Seekers?’, in V. Chetail, P. De Bruycker, and F. Maiani (eds.), Reforming the Common European Asylum System (Boston: Brill, 2016), p. 273. Convention Relating to the Status of Refugees, Geneva, 28 July 1951, in force 22 April 1954, United Nations, Treaty Series, vol. 189, p. 137, available at: www.refworld.org/ docid/3be01b964.html, last accessed 11 May 2019. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, Rome, 4 November 1950, in force 3 September 1953, ETS 5, available at: www.refworld.org/docid/3ae6b3b04.html, last accessed 11 May 2019.

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

      

on the other hand, the basic assumption of mutual trust between member states and their respective asylum systems, which is one of the foundational aspects of EU harmonisation in the areas of freedom, security, and justice.18 Within these aspects lies an inherent dichotomy that Lavenex terms organised hypocrisy.19 It describes the growing difficulty of normative gaps in principles and the actual reality of their practical limits. This can be understood as a conflict between the search for protective norms that are rights-enhancing, e.g. common standards in reception, and the compromise on common protectionist policies, e.g. the closure of borders that are rights-reducing.20 Protective norms in the current asylum policies have been largely left to the discretion of member states. Even where member states have agreed on common measures, such as relocation schemes, tools remained ineffective due to a lack of implementation.21 Reception conditions that entail housing, material reception conditions, health, and education are one part of these protective norms that have been left to the discretion of member states. Furthermore, reception conditions, particularly housing, have been a highly politicised topic at the national and local levels in a variety of member states.22 The European Migration Network (EMN) has found that most member states use collective facilities to host asylum seekers and that only half of them use the possibility of private housing in urgent cases or as an additional option.23 The EMN differentiates between collective facilities and initial/ transit facilities. The latter are used for admissibility procedures that normally take weeks. Once people are admitted to the asylum procedure, they are allocated to follow-up reception facilities. Sixteen countries out of the member states use these initial and transit facilities upon arrival.24 18

19

20 21

22

23

24

J. Vedsted-Hansen, ‘Reception Conditions as Human Rights: Pan-European Standard or Systemic Deficiencies?’, in V. Chetail, P. De Bruycker, and F. Maiani (eds.), Reforming the Common European Asylum System (Boston: Brill, 2016), p. 317. S. Lavenex, ‘“Failing Forward” towards Which Europe? Organized Hypocrisy in the Common European Asylum System: “Failing Forward” towards Which Europe?’ (2018) 56(5) JCMS: Journal of Common Market Studies, 1196. Ibid. F. Trauner, ‘Asylum Policy: The EU’s “Crises” and the Looming Policy Regime Failure’ (2016) 38(3) Journal of European Integration, 322. S. Rosenberger, V. Stern, and N. Merhaut (eds.), Protest Movements in Asylum and Deportation (Cham: Springer International Publishing, 2018). European Migration Network, The Organisation of Reception Facilities for Asylum Seekers in different Member States (2004) http://emn.ie/files/p_20140207073231EMN %20Organisation%20of%20Reception%20Facilities%20Synthesis%20Report.pdf, last accessed 11 May 2019. Ibid.

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.  



This shows that the accommodation of asylum seekers in collective facilities is the most common choice throughout the European member states. The reception directives as well as their national implementation allow a tightly controlled and supervised organisation of reception facilities and show how they are addressed in a certain way that represents the collective reception facility as the norm of accommodation. Although the main task of these camps is certainly to control, administer, and foreclose the arriving refugees, the way that they are organised and structured differ sharply from one another, suggesting that they also aim for and follow different regulations and political discourses and perceptions.25 This, on the one hand, has its basis in the very different histories and development of national legislations on asylum matters and is, on the other hand, linked to the transposition process of the European directive to national legislation and the interpretation of national legislation in regional and local contexts in a constant process of contestation and negotiation. Austria and Italy will figure as vignettes to understand how ‘othering’ is embedded in collective reception not only through housing but also through bureaucratic measures concerning material reception. While Italy has a long tradition of asylum seekers arriving at its shores,26 Austria in general has a low number of asylum demands but has been particularly affected by the summer of migration in 2015/2016, when it took in a high share of asylum seekers. Despite these two very different situations on the ground, both countries have primarily opted for a system of collective accommodation. Using data from two different European countries gives the possibility to see structural differences in the organisation of reception and, at the same time, it allows us to understand how different systems still lead to ‘othering’ and exclusion if the policies are intended to do so. For instance, freedom of movement is particularly restricted for asylum seekers in both countries. Reception facilities are organised through a straightforward system of control and supervision, and material reception can be limited or withdrawn when asylum seekers are absent for more than three days.27

25

26

27

T. Pieper, ‘Lager als variables Instrument der Migrationskontrolle’, in Sabine Hess and Bernd Kasparek (eds.), Grenzregime. Diskurse, Praktiken, Institutionen in Europa (Berlin: Assoziation A, 2010), pp. 219–228. C. Marchetti, ‘Rifugiati e migranti forzati in Itália: il pendolo tra “emergenza” e “sistema”’ (2014) 22(43) REMHU: Revista Interdisciplinar da Mobilidade Humana, 53–70. Documents on house rules in Italy and Austria.

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      

11.3.2 Reception in Austria With Austria’s entry to the European Union in 1995, the Asylum Act (Asylgesetz) was introduced in 1997,28 taking into account the Schengen Agreement and the Dublin Procedure and replacing a hazardous programme of minimum reception that included basic healthcare, housing, and subsistence. The Asylum Act underwent another severe change, when in 2003 the Reception Condition Directive29 had to be implemented by Austrian national law.30 This changed the Asylum Act 200531 and introduced the Basic Welfare Support Agreement (Grundversorgungsvereinbarung).32 After long and complicated negotiations with the regions’ (Bundesländer) authorities, the centre-right-wing government adopted the transposition that ‘was accompanied by the introduction of more restrictive asylum acts’.33 In particular, the question of reception conditions, especially compulsory dispersal and the decision on formal competences, was the subject of contestation. The division of competences led to nine different Basic Welfare Support Agreements (one for each province) and one for the federal government, which defines admission rules and expense rates. This reflected a power struggle over fair distribution and burden sharing between the provinces, rather than an interest in providing dignified standards34. This can be underscored by the fact that the substandard emergency reception centres that had opened in 2015 as a response to the higher number of incoming asylum requests have been systematically kept for long-term reception purposes, exposing asylum seekers to substandard reception standards.35 By the Federal Government Basic Welfare Support Act and the Asylum 28 29 30

31 32 33

34 35

Asylgesetz 1997 BGBl. I Nr. 76/1997. Council Directive 2003/9/EC. European Council on Refugees and Exiles, ‘Navigating the Maze: Structural Barriers to Accessing Protection in Austria’ (2015) www.asylumineurope.org/sites/default/files/ resources/structural_barriers_to_accessing_protection_in_austria.pdf, last accessed 11 May 2019. Asylgesetz 2005 BGBl. I Nr. 100/2005 idF (latest) BGBl. I Nr. 56/2018. Grundversorgungsvereinbarung - Art. 15a B-VG 2004 BGBl. I Nr. 80/2004. S. Rosenberger and A. Konig, ‘Welcoming the Unwelcome: The Politics of Minimum Reception Standards for Asylum Seekers in Austria’ (2012) 25(4) Journal of Refugee Studies, 537–554. Ibid., p. 544. Asylum Information Database, ‘Wrong Counts and Closing Doors. The Reception of Refugees and Asylum Seekers in Europe’ (2016), www.asylumineurope.org/sites/ default/files/shadowreports/aida_wrong_counts_and_closing_doors.pdf, last accessed 11 May 2019.

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.  

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Act 2005, Austrian reception centres are organised differently in every province. Since 2005, the Asylum Act has been regularly restricted, last in October 2017 and March 2019, whereby the law has been considerably tightened.

11.3.3

Reception in Italy

Similar to Austria, but even more so, the regions in Italy are independent in terms of shaping the organisation of reception and reception conditions.36 The Protection System for Asylum Seekers and Refugees (SPRAR) introduced in 2002 is a small-scale reception system that is based on voluntary cooperation between municipalities and the state. Since the participation in SPRAR was voluntary, dispersal and burden sharing between provinces was unequal, and the Emergency Reception Centres (CAS) were introduced in 2013 to compensate for shortcomings in the SPRAR reception system. Although they were conceived as an emergency measure, they have been completely absorbed into the regular reception system. In December 2016, CAS hosted 75 per cent of asylum seekers in Italy. The CAS system is centrally organised and directly subordinated to the Ministry of the Interior through regional prefects. This means that in practice a region can open CAS structures without seeking agreement from the relevant municipality.37 Contrary to the small-scale reception that is organised by municipalities, the direction of services in CAS structures is outsourced to private companies who ensure the provision of services. This has had the effect of deteriorating reception conditions in some cases due to a lack of state control, which has led to some publicly known scandals of fraud and evasion.38 Until 2018, reception conditions were laid down in the national law LD 142/2015,39 which is the actual version that replaced the reception 36

37

38

39

F. Campomori and T. Caponio, ‘Immigrant Integration Policymaking in Italy: Regional Policies in a Multi-level Governance Perspective’ (2017) 83(2) International Review of Administrative Sciences, 303–321. Marchetti, ‘Rifugiati e migranti forzati in Itália’; P. Castelli Gattinara, ‘The “Refugee Crisis” in Italy As a Crisis of Legitimacy’ (2017) 9(3) Contemporary Italian Politics, 318–331. M. Liguori, ‘Prefetto vicario indagato: «Favoriva gli appalti per i centri migranti»’, Il Gazzettino, 9 August 2018, p. 5. Legislative Decree 142/2015 ‘Implementation of Directive 2013/33/EU on minimum standards for the reception of asylum applicants and the Directive 2013/32/EU on common procedures for the recognition and revocation of the status of international protection’, GU. N. 214, 15 September 2015.

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      

decree LD 140/2005 without substantially modifying it.40 This system foresaw a two-phase reception system: a phase of first aid and assistance in which people were either placed in hot spots in Sicily, Lampedusa, or other southern regions of Italy or were brought further north into socalled regional hubs. The large initial and transit facilities were used to register the arriving persons and regulate asylum demand. The second phase was characterised by small accommodation centres (SPRAR) for some asylum seekers and large reception facilities (CAS) for most of them. The new national law DL 113/201841 has abolished the second-line reception and, in particular, small-scale reception and instead introduced larger reception facilities.42 The new degree not only promotes a more spatially exclusionary reception but also reduces material reception conditions such as services and goods and cuts support for integration measures. In particular, the CAS structures in Italy render taking part difficult in the host society. This happens not only through spatial exclusion and complex bureaucratic structures that will be discussed here but also through other measures such as de facto exclusion from the labour market and weak or non-existent integration measures, among others.

11.4

The Camp As a Symbol and Place of Exclusion

In the current literature on migration, the meaning of the camp is conceptualised through lenses of biopolitical control, deceleration of migration flows, and confinement of unwanted subjects.43 The critical literature has conceptualised camps as heterotopian places.44 All these descriptions attempt to place the camp in the context of political transformation of modern societies. This illustrates that the struggle over the meaning of the camp is part of politics of control or politics of 40

41 42

43 44

Legislative Decree no. 140/2005 ‘Implementation of Directive 2009/3/EC on minimum standards for the reception of the asylum seekers in Member States’, GU N.168, 21 July 2005. Legislative Decree no. 113/2018 on security and migration, GU N.281, 3 December 2018. Asylum Information Database, Country Report Italy (2019), www.asylumineurope.org/ reports/country/italy, last accessed 11 May 2019. T. Pieper, ‘Lager als variables Instrument der Migrationskontrolle’. The Foucauldian term deviant heterotopia designates a place where ‘other’ people outside the norm are placed, e.g. in prisons, and constitutes a certain type of counter-space; Transit Migration Forschungsgruppe (ed.), Turbulente Ränder: neue Perspektiven auf Migration an den Grenzen Europas, 2., unveränd. Aufl ed. (Bielefeld: TranscriptVerl, 2007).

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.        

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migration.45 Camps in a larger, historical context have been justified and used to discipline and politicise bodies to subordinate them to economic principles and transform them into productive subjects.46 New patterns of justification have been introduced to argue in favour of the proliferation of collective reception facilities for asylum seekers in Europe. New conceptions of human rights discourses argue that these facilities can save asylum seekers from themselves or from dangerous clashes with border control agencies.47 Kreichauf terms these developments campisation, in which rising numbers of asylum seekers are placed in collective accommodation with services provided non-transparently, which leads to seclusion and represents them as a seemingly homogeneous group in the ambivalent situation of being confined as unwanted or being used as an illegal workforce.48 However, it is also a social place where interaction and agency take place and where we can see a constant interaction and negotiation among asylum seekers, claimants, workers, institutions, and governments. One aspect of ‘othering’ practices and exclusion is space and geography. Seclusion and collectivity enforce processes of ‘othering’ because people are perceived as homogeneous groups. At the same time, they are not able to partake in the host society. This is simply for reasons such as living far away from the city centre but can also be amplified by another aspect of ‘othering’ practices, such as bureaucratic procedures that are linked to material reception conditions. Sometimes they overlap, for example, if there is little money for public transport, people will not go to the nearby village or city to take up offers of language courses. Language courses may be provided in the facility, but the money for the bus is further decreased by the participation fee for the course and so on. In Sections 11.4.1 and 11.4.2, I will give some concrete examples of how ‘othering’ and exclusion works through space and bureaucratic practices in the realm of reception.

45

46

47 48

K. Rygiel, ‘Bordering Solidarities: Migrant Activism and the Politics of Movement and Camps at Calais’ (2011) 15(1) Citizenship Studies, p. 2. M. Foucault and W. Seitter, Überwachen und Strafen: die Geburt des Gefängnisses, 19. Aufl ed. (Berlin: Suhrkamp, 2014). Pieper, ‘Lager als variables Instrument der Migrationskontrolle’. R. Kreichauf, ‘From Forced Migration to Forced Arrival: The Campization of Refugee Accommodation in European Cities’ (2018) 6(7) Comparative Migration Studies; K. Rygiel, ‘Politicizing Camps: Forging Transgressive Citizenships in and through Transit’ (2012) 16(5–6) Citizenship Studies, 807–825.

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      

11.4.1

‘Othering’ through Space

The geographical situation of the camps plays an important role in their functioning and (im)possible interaction with the environment. Spaces must be understood as constructions that influence and produce lived realities and create and re-iterate racialised/segregated spaces.49 Considerably often, camps are located outside of cities or villages with a clear demarcation, such as fences or walls. When camps are located within cities, the demarcation between the inside and the outside, no matter how invisible this demarcation is, structures inclusion and exclusion in the host society.50 In other words, a camp is not only a space or a legal category; rather, it is both at the same time, a set of social-spatial arrangements and policies that need everyday doing.51 Often, buildings and structures used for reception are repurposed without necessarily being appropriate.52 Unused military barracks, office buildings, or old hospitals are rearranged for ‘temporary’ hosting rather than in a sustainable way. Quick degradation and hygiene problems are the consequences. Austrian regions agreed in 2014 on a minimum space of 8 m² per person and 4 m2 for every additional person in the room.53 In the CAS structures that I visited the people only had bunkbeds as their ‘private’ space. This can be strenuous. The tight regulations and strict rules on collective accommodation are juxtaposed with lengthy asylum procedures, for example, the initiation of Dublin procedures even when there is no real prospect of a transfer to another country54. In regard to reception, space is an important factor to consider. The ‘othering’ of a person or a group can be achieved by literally placing the person outside, far away from the centre.55 The tendency to create larger facilities on the outskirts of cities or in secluded areas can also be

49

50 51

52 53 54 55

P. Jackson (ed.), Race and Racism: Essays in Social Geography (Abingdon: Routledge, 2002); B. Ross (ed.), Migration, Geschlecht und Staatsbürgerschaft: Perspektiven für eine antirassistische und feministische Politik und Politikwissenschaft , 1. Aufl ed. (Wiesbaden: VS Verlag für Sozialwissenschaften, 2004); T. Pieper, Die Gegenwart der Lager: zur Mikrophysik der Herrschaft in der deutschen Flüchtlingspolitik , 1. Aufl ed. (Münster: Westfälisches Dampfboot, 2008); Kreichauf, ‘From Forced Migration to Forced Arrival’. Turner, ‘What Is a Refugee Camp?’. N. Blomely, ‘Making Space for Law’, in K. R. Cox, M. Low, and J. Robinson (eds.), The SAGE Handbook of Political Geography (New York: SAGE Publications, 2008), p. 155. Kreichauf, ‘From Forced Migration to Forced Arrival’. Paper from a conference of the regions 2014. European Council on Refugees and Exiles, ‘Navigating the Maze’. Gallaher et al., Key Concepts in Political Geography, p. 328.

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

observed in other European countries.56 Consequently, neighbours often perceive groups of people living together in a small space as homogeneous groups. They find themselves in a discrepant space, being highly visible due to their perceived homogeneity but having invisible needs claims due to their seclusion.57 Particularly in smaller regions, larger collective facilities, i.e. over 50 people strong, are problematic due to the geographical structure, smaller cities, rural areas, and low infrastructure. While in Austria some regions pay public transport fees for asylum seekers, in Italy they have to pay for public transport from their 40 Euros of pocket money. This often represents almost a quarter of the whole amount for one trip to the nearby city. As a social worker in Austria describes the outcome of this seclusion in very peripheral regions, There are facilities where the public transport is connected to schooling, which means that during the summer and holidays, there are no buses at all. We often criticised this, but the proposed solution was to ask the host to drive them down to the next train station. So, they always had to beg her to go with them. In the end, they didn’t keep their appointments with the doctors because they didn’t want to beg anymore . . .. (IA3, L. 151–159)

This means that asylum seekers are made dependent on a person’s favour to be able to move around. This reduces their contact with the next city or village to a minimum or even less. In large reception centres in Italy, the solution was to integrate all services that the state is obliged to deliver, such as medical treatment, Italian classes, food, etc., into the reception centre, so that people no longer had to leave the centre, which is a step further towards structural disintegration.58 This allows the cutting away of people from the host society and also renders non-transparent the quality of services, as one operator of a large centre in Italy recalls: The problem is not only the Cooperativa [the company that organises the services] but also the whole structure, the system should be public and not private, if you leave it to private companies, they calculate everything . . . they say we can save money on the food, because they don’t need food that good anyway, it is a business. (II5 L.89–91 and 100–102)

56 57

58

Kreichauf, ‘From Forced Migration to Forced Arrival’. M. Haselbacher, H. Hattmannsdorfer, ‘Desintegration in der Grundversorgung‘ (2018) 3 (3) Juridikum. Zeitschrift für kritik | recht | gesellschaft, p. 379. V. Täubig, Totale Institution Asyl: empirische Befunde zu alltäglichen Lebensführungen in der organisierten Desintegration (Weinheim: Juventa, 2009).

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      

This sheds light on another link that is important to make: through the privatisation and outsourcing of reception to private companies, services have been incorporated into the reception facilities. While one argument of the cooperatives is that this guarantees services, it also raises the issues of rentability by private companies and a limited concern for the actual needs within the structure.59 The asylum seekers that I talked to continually report that medical treatment was basically equivalent to receiving painkillers. In this case, spatial seclusion and the delivery of services are combined in a way that makes it difficult for inhabitants to enter into contact with host societies and develop an independent relation to the environment in which they live. This seclusion on the one hand and the collective living on the other contributes to processes of ‘othering’. People are hindered from creating links with the host society or formulating individual demands, and at the same time they are perceived as a homogeneous group that blends in with public narratives of the needy ‘masses’ that overburden welfare systems and local ecosystems.60

11.4.2

Catch 22 – ‘Othering’ through Bureaucratic Means

Rules and regulations structure the daily life of asylum seekers in the facilities. Social workers and operators whose job descriptions are often very vaguely defined execute and supervise daily tasks. This includes supervising the cleaning, paying out financial allowances, distributing hygienic articles and solving minor conflicts if they appear. Two examples show the ambiguity of the bureaucratic structure of the basic care system that is juxtaposed with the vague descriptions of the administrator’s task. The director of the reception facility receives additional money from the region for these amenities, which include ‘assistance’, ‘prayer rooms’, or supplementary hygienic articles such as shaving foam that should help ameliorate the life of asylum seekers in the facility. However, nowhere is it defined what this prayer room should look like and neither is there regular control over these amenities. An interviewed social worker from Austria, who acts as an external supervisor, stated the following: 59

60

J. Darling, ‘Asylum in Austere Times: Instability, Privatization and Experimentation within the UK Asylum Dispersal System’ (2016) 29(4) Journal of Refugee Studies, 483–505. Grove and Zwi, ‘Our Health and Theirs’.

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

The real problem are the big players, they have amenities in their contract. For example, there is the additional point of ‘assistance’. According to this, they must have a visiting frequency, depending on the amount of people that live in the camp; for example, some of them should be there five times a week to organise appointments at the doctor, help the asylum seekers with orientation and some other activities. Suddenly, many large facilities use this additional point, but they only come once a week to pay out the money. (IA3, L. 306–312)

Financial allowances are another aspect whereby people can be deprived of liberties or possibilities. For every financial allowance paid out, there are specific rules that need to be followed by the applicants; for example, 10 Euros of leisure time money each month is paid out only for a bill that describes the activity or product purchased. This may imply complicated negotiations in shops or entertainment centres to obtain the ‘right’ type of bill. In some regions, for example, in Lower Austria, this money is only available if people join together for a group activity. As the social worker explained in an interview, That is, the 10 Euros per person per month, they don’t get it paid out directly; it is used for group activities, for example, if there is a German course the volunteer who leads the course will get the money, and if there is no course the money is left over, it’s fictional money. Our clients don’t get it; they can also go to the cinema with it, but they have to be at least three people. (L. 257–263)

Financial allowances are regularly modified to allowances in kind, such as vouchers that allow asylum seekers to buy certain goods only in one particular shop. One of the social workers in Italy first explained this in terms of a preoccupation with health standards: It’s not good to give them money because we can’t be sure that they will really spend the money on food and that the quality of the food is good. Because otherwise we are all the time at the doctor [with them] – I know that it has something to do with what they eat and the quality of the food. (II7, L.70–71)

Later, she noted that nothing changed by changing to the voucher system but that it was easier for the Cooperativa because they had to follow new regulations from the regional government. Vouchers and bills not only limit the possibility of free choice and selfdetermination but also have a stigmatising function. Having to ask for the ‘right’ type of bill means having to explain yourself to the shop keeper, so you do not just pass as a tourist. A voucher for one particular

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

      

group immediately exposes the voucher holder as an asylum seeker and marks him or her as outside the norms of consumer society.

11.5

Conclusion

In the conflict over burden sharing and solidarity in the European Union, protective norms have been left to the discretion of member states.61 The directive is the smallest common denominator with which the countries must comply, with the goal of delimiting secondary movement. In most member states, collective reception is the most prominent form of accommodation, which often leads to exclusion and seclusion from the host society. As I showed through the examples from Austria and Italy in this chapter, ‘othering’ strategies that place asylum seekers on the margins by spatial and geographical means further strengthen seclusion and isolation. Groups of people are perceived and ‘imagined’ as homogeneous ‘others’ in contrast to a constructed consistent group of inhabitants. This might be more the case in smaller villages than in larger cities. Nevertheless, architectural aspects such as the building that is chosen to collectively host asylum seekers can also contribute to this imagining in city neighbourhoods. Another aspect of ‘othering’ happens through bureaucratic practices that mark asylum seekers in the public mind as ‘users’ of services and goods that the host society offers them. Because of systems of vouchers or the need to comply with disputable rules on bills and approvals, people cannot simply exercise their rights but become suppliants. When services and material goods are offered exclusively in camps and facilities, people have no reason to leave the camp and have little opportunity to communicate and connect with the host society. At the same time, the quality of services and goods is at risk of not being evaluated. As we can also observe in recent legislative changes and media discussions in Italy and Austria, the proliferation of larger facilities and camps is a Europe-wide phenomenon.62 As long as asylum claims are not proven ‘valid’, asylum seekers are confronted with claims of being bogus asylum seekers or economic migrants and are therefore cut off from the host society. This makes them an anonymous homogeneous group that can easily be represented as the ‘other’, culturally and economically. While for states and operators, collective accommodation has the 61 62

Lavenex, ‘“Failing Forward” towards Which Europe?’. Kreichauf, ‘From Forced Migration to Forced Arrival’.

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. 



advantage of being cheaper and allowing more control, for asylum seekers the disadvantages are high. People are constantly marked as ‘others’ by host societies and do not have the possibility to learn how to navigate the system outside the camps. Furthermore, seclusion and isolation also cut people off from support groups and impede individual relationships with members of the host society.

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12 Integration Impossible? Ethnic Nationalism and Refugee Integration in Bulgaria                         12.1

Introduction

Stuck between politics of ethnic nationalism and multiple responsibilities under international legal regimes, Bulgaria has introduced a laissezpasser integration model for refugees which is in stark contrast with integration policies in Western Europe, but ironically achieves similar results of ‘othering’ and exclusion. As such, the case of Bulgaria offers an additional perspective to the processes of ‘othering’ in Western European countries analysed in this book in that the deliberate absence of a functioning refugee integration mechanism can also be deemed an equally detrimental manifestation of the same processes. Bulgaria is one of the Central and Eastern European (CEE) countries which have come up with strategies to divert and exclude asylum-seekers and refugees, without taking the form of an explicit resistance to European Union (EU) responsibilities such as in the case of other CEE countries.1 Bulgaria’s refugee integration policies, or the lack of them, fit within a continuum of exclusionary strategies and practices disguised under the cloak of freedom of participation in the integration process, suggested by some as an alternative to the mandatory integration and civic orientation courses imposed on migrants and refugees.2 The integration experiences in the CEE countries caution against such an easy way out of ‘othering’ and point the attention to the ethnic basis of exclusionary policies. The lessons learnt become even more essential in the context of the CEE countries which are often perceived as producing ‘the other’ in other EU Member-States.

1

2

Joined Cases C-643/15 and C-647/15, Slovakia and Hungary v. Council ECLI:EU: C:2017:631. M. Jesse, The Civic Citizens of Europe: The Legal Potential for Immigrant Integration in the EU, Belgium, Germany and the United Kingdom (Leiden: Brill, 2017).

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. 



Employing a historico-legal analysis of refugee integration in Bulgaria in law and in fact, this chapter aims to show that the absence of policies supporting integration leads to exclusion and ‘othering’, often resulting in onward movement, which is in turn based on a deep-seated ethnic understanding of the nation and citizenship.3 By looking at the relationship between refugee integration and nation-building conceptions, it reveals the underlying purpose of the absence of any integration policy in the context of ‘othering’. This relationship is examined through the prism of ethnic and civic nationalism. The current political developments characterised with rising right-wing populist discourse not only in the CEE, but also in France, Austria, the Netherlands, Italy, and even Germany, as exemplified by recent election outcomes of 2017 and 2018 in each country, show that this dichotomy is not at all outdated, but instead provides for a rich theoretical framework to understand the trends towards nationalism on a European level.4 Paradoxically, the mass influx of 2015 and 20165 seems to have had the effect of synchronisation of inter-European approaches to migration and refugee issues, albeit in a fashion contrary to the common European values underpinning the EU, namely ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’.6 This chapter is structured in the following way. First, it explains why the case of Bulgaria lends itself as a suitable example for the examination of the above inter-connectedness in comparison to other CEE countries. 3

4

5

6

A similar landscape is presented in Hungary, famous for its kinship policies which consider foreign citizens with Hungarian ethno-cultural identity part of the Hungarian nation, thus prioritising an ethnic understanding of membership and belonging and inclusion in the ‘us’ group. B. Soltész, ‘Migration Trends and Their Socio-Economic Context in Hungary’, in J. Kucharczyk and G. Mesežnikov (eds.), Phantom Menace: The Politics and Policies of Migration in Central Europe (Bratislava: Institute for Public Affairs and Heinrich-Böll-Stiftung, 2018), p. 212. This trend, among others, has been confirmed by the outcomes of the European Parliament vote of May 2019 where Eurosceptic and far-right nationalist parties scored highly in the UK, France, Italy, and Hungary. It is exaggerated to speak of a refugee crisis if one looks at the facts. According to UNHCR, only 15 per cent of the world refugee population, standing at 68.5 million in 2017, are hosted by economically developed states, including Europe. With a population of almost 512 million, the relative number of refugees hosted in the European Union is negligible (UNHCR, ‘Global Trends: Forced Displacement in 2017’ (2018), Available at: www.unhcr .org/dach/wp-content/uploads/sites/27/2018/06/GlobalTrends2017.pdf, last accessed 2 June 2019). Consolidated version of the Treaty on European Union, OJ 2012 No. C326, 26 October 2012, Art. 2.

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

 ?

Next, Bulgaria’s refugee integration policies and practices are outlined, introducing what is called a laissez-passer approach in this chapter. Finally, it looks into the underlying reasons for the lack of integration policies by examining the relationship between integration policies and nationalism, underlining the inter-connectedness between East and West. In other words, the chapter will prove that understanding the East can contribute to a better understanding of the West, contrary to the general belief that ‘the peculiarities of Eastern and Central Europe . . . preclude any meaningful comparison with analogous situations in Western Europe’.7

12.2 Bridging East and West: The Case of CEE and Bulgaria 12.2.1 Refugee Policies in CEE Countries The CEE countries, just like Bulgaria, have remained mostly transit countries in the past few years. The numbers of asylum-applications and granted protection vary significantly though, Bulgaria taking the lead in the number of granted statuses, and sharing the first two places with Hungary with regard to asylum-applications in 2016.8 The numbers of both asylum-seekers and recognised refugees remained low in absolute and relative numbers in Slovakia, the Czech Republic, and Poland. In line with its sharp anti-refugee tone of voice, Hungary terminated its integration programme for refugees in June 2016.9 In Poland there is no state funding for refugee integration. As such refugee integration support is provided by NGOs and in some cities under municipal integration plans on a voluntary basis and upon availability of funds (mostly under the EU Asylum, Migration and Integration Fund [AMIF] 2014–2020).10 The situation in Slovakia painfully resembles the one in Bulgaria: lack of implementation of envisaged integration support due to missing state support and coordination.11 In Hungary, Poland, and Slovakia there is no strategic and/or legal framework governing the issues of integration of 7

8

9 10 11

W. Kymlicka, ‘Nation-Building and Minority Rights: Comparing West and East’ (2000) 26(2) Journal of Ethnic and Migration Studies, 183. Eurostat, ‘Asylum and First Time Asylum Applicants by Citizenship, Age and Sex’, Annual aggregated data for 2018. Available at http://appsso.eurostat.ec.europa.eu/nui/ show.do?dataset=migr_asyappctza&lang=en, last accessed 2 June 2019. AIDA, Country Report Hungary (2016), p. 12. Ibid., pp. 22–23. E. Gallová-Kriglerová and A. Chudžíková, ‘Slovak NGOs Ease Migrant Integration Locally but Need Political Support’, Social Europe, 24 October 2016, available at www

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.      



third country nationals, including of refugees. Contrary to these negative practices, the Czech example deserves more attention. The Czech Republic was the first CEE country to introduce a refugee integration programme in 1999 which has been run by the Ministry of Interior and offers quite comprehensive support (although often insufficient) in cooperation with NGOs.12 The recent discontinuation of integration programmes in Poland and Hungary points to a trend towards a by-default exclusion of migrants and refugees due to lacking or severely hampered provision of integration services. The absence of integration support inevitably leads to nonacceptance and ‘othering’ which is the result of and reinforced by an ethnic understanding of belonging to the nation-state. As explained in Section 12.3, CEE countries’ understanding of nationhood has been ethnic all along, but its manifestation in citizenship and integration policies varied throughout the years shaped by political priorities and decisions.13 The examples of the CEE countries show that integration policy is deeply linked to political processes which allow for the aggravation or mitigation of a strong ethnic understanding of belonging. Such an approach allows for the understanding of the ethnicisation of integration policies in countries traditionally seen as adhering to civic nationhood notions, such as those in Western Europe. It also points to the volatility of the treatment of the ‘other’, both as a warning to its dangers and as a potentiality to avoid it by tackling its underlying causes, because ‘the ways in which we conceive and treat the stranger is often the most telling indicator of the directions in which our own community and future are developing’.14

12

13

14

.socialeurope.eu/slovak-ngos-ease-migrant-integration-locally-need-political-support, last accessed 2 June 2019. More information is available on the website of the Ministry of Interior, 2017. Further focus on the Czech Republic is necessary to elucidate the relationship between the refugee integration policy and its understanding of the notion of nationhood, which is outside the scope of the current paper. A political analysis could also elucidate the relationship between the fact that no extreme right-wing party is part of the ruling coalition in the Czech Parliament, unlike the situation in Poland, Hungary, Slovakia, and Bulgaria. For an analysis of the radical right discourse and identity politics in the Visegrad Four, see A. Kazharski, ‘The End of “Central Europe”? The Rise of the Radical Right and the Contestation of Identities in Slovakia and the Visegrad Four’ (2018) 23(4) Geopolitics, 754–780. D. Acosta Arcarazo and J. Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’ (2014) 39(3) European Law Review, 362–379.

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

 ?

12.2.2 Refugee Policies in Bulgaria In the case of Bulgaria, a state of emergency was already proclaimed by UNHCR and the Bulgarian government in the end of 2013, with the numbers of asylum-seekers and recognised refugees remaining high in a stable fashion until the end of 2016.15 As with the other CEE countries, for most asylum-seekers and refugees Bulgaria remained a transit country, despite the applicability of the Dublin Regulation.16 A much smaller number of asylum-seekers and refugees compared to the overall number of arrivals remained in Bulgaria. There are no official statistics on the number of the refugees and subsidiary protection holders who actually remain on the territory of the country. The reason for this lack of accurate numbers are significant secondary movements to Western European countries without proper registration of departures. The number of refugees in Bulgaria was estimated by UNHCR to stand at a couple of hundred as of April 2017.17 These few hundred refugees who remained in Bulgaria did not receive state support for integration in the period January 2014–July 2017, because there was no legislative framework regulating the provision of such support. Currently, despite the adoption of an Ordinance on Integration Agreement for Beneficiaries of International Protection, refugees remain left to their own devices due to

15

16

17

In the period 1993–2012 the average annual number of asylum applications was 1,000 persons, out of whom about 100 were granted international protection. Since 2013, this model has sharply changed. In 2013 and 2014 from about 10,000 asylum applications, they reached 20,000 in 2015 with more than 5,000 positive decisions. Since 2016 these numbers have gradually decreased, almost reaching the pre-2013 numbers. Data available on the website of the State Agency for Refugees (2019), available at https://aref .government.bg/bg/node/238, last accessed 2 June 2019. Regulation 604/2013 of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person (recast) (known as the Dublin III Regulation), OJ 2013 No. L180/31, 29 June 2013, has been considered as largely ineffective. For example for the period May 2018–April 2019, out of 359 take back requests to Bulgaria, 51 (or 14%) were effectuated (source: Migration statistics for April 2019 of the Ministry of Interior, 2019. Available at: www.mvr.bg/docs/default-source/planiraneotchetnost/ spravka_april_2019_internet.pdf?sfvrsn=e514252d_2, last accessed 2 June 2019. S. Iliev, ‘Where There Is a Will, There Is a Way. Private Sector Engagement in the Employment of Beneficiaries of International Protection’, UNHCR, Sofia (2017), available at https://ec.europa.eu/migrant-integration/librarydoc/bulgaria-private-sector-engagementin-the-employment-of-beneficiaries-of-international-protection, last accessed 2 June 2019, p. 7.

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. -/- 



its limited implementation.18 Bulgaria does not follow a civic integration approach, requiring refugees to endorse or at least understand the local language, culture, and values, as is the case in some of the other CEE countries.19 On the other hand, there is also no liberal, ‘dialogue-based’ approach to integration either.20

12.3 Laissez-faire or Laissez-passer Approach to Refugee Integration? 12.3.1

Refugee Integration Policies in Bulgaria: Pre-2013

Refugee integration policies in Bulgaria are severely at odds with those of its Western European counterparts. While there are no civic integration requirements, a focus is placed on the equal rights and obligations of refugees as those of Bulgarian citizens, thus employing a laissez-passer approach to integration with the effect to no practical integration into society being possible. The integration process is voluntary for both parties, i.e. refugees and local authorities, failure to integrate is not related to any sanctions and is the refugee’s responsibility alone. As a result, there is a consistent state-led policy of ‘othering’. In order to illustrate this, a brief historic excursion is due. The Bulgarian refugee integration system was set up in 2005. The refugee integration competences were trusted with the State Agency for Refugees, 18

19

20

Ordinance on the Terms and Conditions for Conclusion, Implementation and Termination of Integration Agreements with Foreigners Granted Asylum or International Protection 2017. The Ordinance has to date been implemented for only five refugee families, four of which were resettled as of the end of 2018. In Slovakia, reception of financial support for a period of six months is coupled with an obligation to take language courses and job counselling. M. Sekulová and M. Hlinčíková, ‘Integration of Migrants and Refugees in Slovakia: The Perspective of Policies, Programmes and Their Outcomes’, in J. Kucharczyk and G. Mesežnikov (eds.), Phantom Menace: The Politics and Policies of Migration in Central Europe (Bratislava: Institute for Public Affairs and Heinrich-Böll-Stiftung, 2018), p. 44. In the Czech Republic there is a plan to make language tests obligatory for third country nationals, but not for beneficiaries of international protection. E. Valentová, ‘Selected Aspects of Migrant Integration in the Czech Republic’, in J. Kucharczyk and G. Mesežnikov (eds.), Phantom Menace: The Politics and Policies of Migration in Central Europe (Bratislava: Institute for Public Affairs and Heinrich-Böll-Stiftung, 2018), p. 119. As for example in the case of Wallonia, see Jesse, The Civic Citizens of Europe, pp. 344–345. Jesse suggests that the Walloon model ‘is the least stigmatizing and excluding way to integrate’. While an impact assessment of the Walloon integration policies is beyond the scope of analysis of this paper, in light of the Bulgarian example it offers a beneficial perspective for future analysis.

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

 ?

under the Council of Ministers, which adopted three-year National Integration Programmes for Refugees, the last one being for the period 2011–2013. Under the three three-year programmes, which were in substance more or less identical, refugee integration support would be provided by a centralised organ on a voluntary basis for a period of up to one year. The following activities were envisaged: one-off financial assistance, rental subsidies for six months at an external address freely chosen by the beneficiary without support to provide accommodation, health insurance installments for the duration of participation in the programme, Bulgarian language training for 6 months, vocational training for 3 months, per diem financial allowance for attendance of Bulgarian language classes or vocational training,21 transportation costs reimbursement, and social and cultural orientation, such as visits of historic and cultural sites and museums without any provision of classes. Beneficiaries of international protection were mainstreamed in the general education and employment sectors.22 For the implementation of these programmes, the Refugee Agency partnered with NGOs. At that stage few line ministries or other state institutions had specific competence towards refugees. Local authorities were not part of the process. In terms of funding, the Agency is a unit under the supervision of the Ministry of Interior. As such it had allocated funding for refugee integration activities which was not ear-marked.23 This omission resulted in instability and lack of sustainability for the implementation of the envisaged integration support. This undermined the legitimacy of the whole programme and the interest of refugees in participating in it. These impediments meant that it was extremely difficult for refugees to be motivated to participate in the integration programme and to complete it, if enrolled. There were many drop-outs of people who had 21

22

23

This financial allowance was meant to balance for the temporary unemployment of the participants for the duration of their participation in the classes. However, its amount was discriminatory, as refugees received 4 BGN (or 2 EUR) per day, in comparison to 8 BGN (4 EUR) per day for Bulgarian citizens participating in mainstream vocational training. For ease of reference, the minimum monthly salary in 2013 was 310 BGN (or 155 EUR). Z. Vankova, ‘Report on the Monitoring of the Implementation of the National Program for the Integration of Refugees in the Republic of Bulgaria (2011–2013) in 2013’, Multi Kulti Collective, Sofia (2013), available at http://multikulti.bg/wp-content/uploads/2013/ 06/Monitoring_Integration_Refugees_2013_EN.pdf, last accessed 2 June 2019, p. 14. Court of Auditors, ‘Auditing the Implementation of the National Integration Programme for Refugees in the Republic of Bulgaria (2011–2013)’ (2015), in Bulgarian. Ibid.

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. -/- 



to start working in order to be able to sustain their families, as the envisaged financial support was either too late or insufficient for their subsistence. In its Auditing Report on the Implementation of the National Integration Programme for Refugees (2011–2013), the Court of Auditors concluded that ‘the applied approach for provision of financial assistance within the National Programme, in the period of initial adaptation, orients the refugees towards individual integration or refusal to integrate in Bulgarian society’.24

12.3.2 Refugee Integration Policies in Bulgaria: Post-2013 After the mass influx of 2013, the then left-wing government in power took a political decision to adopt a new integration model that would guarantee the involvement of all relevant ministries and local authorities in the implementation of refugee integration activities. However, in the course of three years, effectively until July 2017, there was no adequate legislative, and therefore institutional framework for the realisation of an integration policy. Most importantly, there was neither a responsible coordinating body, nor allocated funding for integration. Refugees were left on their own and in the hands of NGOs, which had limited funding from the UNHCR and AMIF.25 Bulgaria, as an EU Member State, is obliged to bring its domestic legislation in compliance with EU law. The leading EU legislative framework on refugee integration is the Qualification Directive.26 As integration can be understood as a set of sectoral policies, the transposition of each provision on a national level is very fragmented and falls under the scope of various primary and secondary legislative acts. In this regard, 24

25

26

Ibid., p. 32. Unofficial translation by the author. ‘Прилаганият подход на предоставяне на финансови помощи по Националната програма, в периода на първоначална адаптация, ориентира бежанците към самостоятелна интеграция или отказ от интеграция в българското общество’. For more information on the first ‘zero integration’ year, see Z. Vankova, ‘Monitoring Report on the Integration of Beneficiaries of International Protection in the Republic of Bulgaria in 2014’, Multi Kulti Collective, Sofia (2014), available at http://multikulti .bg/wp-content/uploads/2013/06/monitoring_integration-refugees_2014-EN.pdf, last accessed 2 June 2019. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (Qualification Directive), OJ 2011 No. L337/9, 20 December 2011.

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

 ?

Article 34 of the Qualification Directive is of key significance. It requires Member States to ‘ensure access to integration programmes which they consider to be appropriate so as to take into account the specific needs of beneficiaries of refugee status or of subsidiary protection status, or create pre-conditions which guarantee access to such programmes’. It is within this obligation that Bulgaria was required to elaborate a targeted state integration programme for refugees and subsidiary protection holders. Bulgaria formally transposed Article 34 of the Qualification Directive by supplementing Article 37a to the Law on Asylum and Refugees of 2002 in 2015, last amendment in April 2019.27 It states today that refugees and subsidiary protection holders ‘shall be offered to sign an integration agreement regulating their rights and obligations, as well as the rights and obligations of the relevant state or municipal authorities’. This reference points to secondary legislation that is supposed to regulate the elaboration and implementation of a targeted state integration support for refugees. The relevant secondary legislation, the Ordinance on the Terms and Conditions for Conclusion, Implementation, and Termination of the Integration Agreement for Foreigners Granted Asylum or International Protection (the Ordinance), was finally adopted in July 2017.28 It introduces a voluntary integration agreement which can be entered between a beneficiary of international protection and the mayor of a municipality for a period of one year, which is extendable by another year under Article 3. Interestingly, the Ordinance codifies the responsibilities bearing relation to integration already available to refugees and subsidiary protection holders under the mainstream social support system in the 27

28

Law on Asylum and Refugees, Promulgated in State Gazette No. 54/31 May 2002, last amended and supplemented, SG No. 34/23 April 2019. Available at: www.refworld.org/ pdfid/47f1faca2.pdf (accessed 2 June 2019, in Bulgarian). A first version of an Ordinance on Integration Agreement was adopted by the centreright government of Boyko Borisov. In November 2016, Bulgaria elected its new president Rumen Radev who in his pre-election campaign had promised to revoke the Ordinance. According to media statements, the revocation of the Ordinance on Integration Agreement in March 2017 is the result of the President’s insistence on meeting his pre-election promise (BTA, ‘Government Revokes Refugee Integration Ordinance’, BTA, 31 March 2017, available at www.bta.bg/en/c/DF/id/1549686, last accessed 2 June 2019). A new revised version of the Ordinance was adopted in July 2017. See Sofia Globe for UNHCR’s position on the new Ordinance, offering a comparative perspective with the old version of the Ordinance. Sofia Globe, ‘UNHCR Welcomes Bulgaria’s New Ordinance on Refugee Integration, but Points to Gaps’, Sofia Globe, 24 July 2017, https://sofiaglobe .com/2017/07/24/unhcr-welcomes-bulgarias-new-ordinance-on-refugee-integration-butpoints-to-gaps/, last accessed 2 June 2019.

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. -/- 



areas of education for children, employment, social assistance, healthcare, maintenance of public order and security, child protection, and sports activities in Articles 21–27. It does not, however, introduce any targeted integration support in the areas of housing and Bulgarian language for adult beneficiaries of international protection. In order to facilitate the integration process, the mayors of Bulgarian municipalities are required to draw up an individual integration plan which should contain ‘concrete integration measures’ in the relevant integration sectors according to Article 4(3) of the Ordinance. The responsibilities of the mayors can mostly be subsumed under the duty to provide information about and refer the refugees/subsidiary protection holders to territorial and/or regional units of the central authority bodies which provide mainstream services. According to Article 28, such may be provided by NGOs and/or international organisations, which are also potential providers of awareness-raising sessions targeting the local population and aiming at fostering welcoming communities. Importantly, the Ordinance does not foresee the allocation of targeted funding for refugee integration under the national budget.29 As a result, municipalities remain deprived of any support and motivation to deal with refugee integration on a local level and see it as an extra burden on their shoulders, rather than as an opportunity for urban and community development. The lack of targeted integration support is deliberate and the official objective sought is to guarantee equality and non-discrimination of Bulgarian citizens and refugees and people benefitting from subsidiary protection according to paragraph 1(3) of the Supplementary provisions., This precludes the possibility for refugee integration in practice.30 To 29

30

Art. 33(1) stipulates that ‘The Sources of funding for integration measures and activities are: 1. EU funds and programmes; 2. funds, programmes and instruments of other donors; 3. international institutions and organizations; 4. national funding from the state budget, within the scope of the consolidated fiscal programme’ (unofficial translation). (Източниците на финансиране на мерки и дейности за интеграция са: 1. фондове и програми на Европейския съюз; 2. фондове, програми и инструменти на други донори; 3. международни институции и организации; 4. национални средства по бюджетите, попадащи в обхвата на консолидираната фискална програма.) Pursuant to §1(3) of the Supplementary provisions “[t]he access to the available integration possibilities in the areas outlined in Art. 5 [see reference to Art. 21–27 above] is provided under the terms and conditions for Bulgarian citizens and without violating the human rights and personal dignity of the foreigner granted asylum or international protection” (unofficial translation). (Достъпът до предлаганите възможности за интеграция в посочените в чл. 5 области се предоставя при условията за

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

 ?

date, with the exception of the situation with resettled refugees, there has been only one municipality which has officially agreed to accept one refugee family of its choice to sign an Integration Agreement with them, thus rendering the Ordinance almost completely ineffective in practice. In order to understand the purpose of the Ordinance in view of the fact that it does not introduce new responsibilities regarding the provision of targeted integration support,31 one needs to keep in mind that the Ordinance was formally transposing Article 34 of the Qualification Directive. And indeed, immediately upon the revocation of the previous Ordinance on Integration Agreement in March 2017, voices were heard on an EU level by European Parliament Members and by the President of the European Council, that this move was in breach of EU legislation and could lead to negative consequences for the country.32 Bulgaria had to quickly adopt the current Ordinance of July 2017. As a result, the assessment of the Court of Auditors regarding the pre2013 targeted integration support stating that it ‘orients the refugees towards individual integration or refusal to integrate in Bulgarian society’ is highly relevant to the current integration policy (or lack thereof ).33 While it will be a speculation to claim that such a liberal laisser-faire approach to refugee integration is deliberately aiming at promoting secondary movements of refugees to countries where integration support is available, reality shows that, whatever the motivation, the result of the (non-)implementation of the existing integration policy is a laisser-passer approach. The overall message is that refugees will never be one of ‘us’, as ‘us’ is characterised in ethnic terms, and therefore there is no need to invest in a futile effort. This triggers a vicious circle according to which refugees do not want to stay in Bulgaria because there is no support, and there is no need for support because refugees do not want to stay in Bulgaria. The low number of refugees and subsidiary protection holders

31

32

33

българските граждани и без да се нарушават човешките права и личното достойнство на чужденеца с предоставено убежище или международна закрила.” However, a novel provision assigns the coordination of implementation of Integration Agreements to a Deputy Prime-Minister, assisted by the administration of the Council of Ministers (Art. 19(1)(2)). The author is not aware of an officially appointed Deputy Prime-Minister in charge of refugee integration coordination as of the time of writing of this paper. Sofia Globe, ‘Process of Bulgaria’s New Ordinance on the Integration of Refugees Will Be a Long One’, Sofia Globe, 5 April 2017, available at: https://sofiaglobe.com/2017/04/05/ process-of-bulgarias-new-ordinance-on-the-integration-of-refugees-will-be-a-long-one/, last accessed 2 June 2019. Court of Auditors, ‘Auditing the Implementation’, p. 32.

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. ‘’ & ‘’   & 



who nonetheless choose to remain in Bulgaria does not absolve the state from its international obligations to provide for adequate integration of forced migrants. An argument that municipalities have no interest in accepting refugees is not valid, as it is the state’s responsibility to set up a working and effective integration mechanism and motivate and support local authorities to pioneer in the area of refugee integration in the first place.

12.4 ‘Othering’ and ‘Otherness’ in the East and in the West 12.4.1

Nation-Building, Citizenship, and Integration Policies

The lack of refugee integration mechanisms in Bulgaria and in other CEE countries can be explained by ongoing trends towards ethnicisation of belonging to the nation-state. The theory of civic and ethnic nationalism which is not only still relevant nowadays, but is gaining ever growing importance, offers a possible explanation of this phenomenon. In his seminal work, Brubaker illustrates the differences between the understanding of nationhood and the forms of nationalism in Germany and France. He claims that these become most visible in the politics of citizenship vis-à-vis immigrants, as ‘citizenship remains a bastion of national sovereignty’.34 In his model, these understandings are deeply rooted and help explain the different extent of openness towards immigrants. According to him, France is characterised by an assimilationist understanding of nationhood, as opposed to an ethnocultural one prevalent in Germany. Further, this model is seen as a criticism of the ethnic model, followed by Germany which to a large extent precluded the ‘civic incorporation’ of migrant workers and their descendants, until even the third generation, unlike the situation in France.35 Enriching the above model and using the example of Germany, Doomernik and BruquetasCallejo further illustrate the inter-connectedness between the conception of citizenship and the development of integration policies. They claim that, due to the exclusive notion of nationhood adhered to by Germany, it took some countries in North-Western Europe ‘a very long time to acknowledge the permanent character of migration’.36 34

35 36

R. Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1998), p. 3. Brubaker, Citizenship and Nationhood in France and Germany, p. 75. Immigrants were ‘noticed’ as potential contributors to the economic development of Germany in 2001. J. Doomernik and M. Bruquetas-Callejo, ‘National Immigration and

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

 ?

The application of this model has been much criticised ever since for its inflexibility, including by Brubaker himself,37 and nowadays seems mostly disproved by the change in German migration policies opening up to integration of third-country nationals post-2004.38 Germany is currently the strongest example of a liberal policy towards reception and integration of refugees in Europe.39 However, it is claimed here that the German case does not question the relevance of Brubaker’s theory, but instead allows for its refinement. The categories of ethnic and civic citizenship should not be seen as mutually exclusive, but as being placed on a continuum, their manifestation being a matter of extent.

12.4.2

Ethnic and Civic Nationalism Revisited

The general usage of the dichotomy ethnic–civic nationalism can be subsumed under the understanding that ‘civic nationalism [is] characterized as liberal, voluntarist, universalist, and inclusive; and ethnic nationalism, glossed as illiberal, ascriptive, particularist, and exclusive. These are seen as resting on two corresponding understandings of nationhood, based on common citizenship in the first case, common ethnicity in the second’.40 By and large, the CEE countries are seen to have historically developed in a way that leads to the endorsement of the ethnic interpretation of nationality.41 At the same time there is a ‘more or less implicit assumption . . . that liberal-democratic states [i.e. Western democracies] have been and are, to a large extent, “ethnoculturally neutral”’.42 Further, as implied in Brubaker’s account of France and Germany’s nationhood

37

38

39

40 41

42

Integration Policies in Europe since 1973’, in B. Garcés-Mascareñas and R. Penninx (eds.), Integration Processes and Policies in Europe (Rotterdam: IMISCOE Research Series, 2016), p. 68. R. Brubaker, ‘The Manichean Myth: Rethinking the Distinction between “Civic” and “Ethnic” Nationalism’, in H. Kriesi, K. Armingeon, H. Slegrist, and A. Wimmer (eds.), Nation and National Identity: The European Experience Perspective (Zürich: Verlag Rüegger, 1999), pp. 55–72. For an overview of the (new) German Law Concerning Residence, Employment, and Integration of the Federal Republic of Germany of 2004, see Jesse, The Civic Citizens of Europe, pp. 94–95. J. Dostal, ‘The German Federal Election of 2017: How the Wedge Issue of Refugees and Migration Took the Shine Off Chancellor Merkel and Transformed the Party System’ (2017) 88(4) The Political Quarterly, 600. Brubaker, ‘The Manichean Myth’, p. 56. R. Baubock, ‘Preface’, in R. Baubock, B. Perching, and S. Wiebke (eds.), Citizenship Policies in the New Europe (Amsterdam: Amsterdam University Press, 2009), p. 17. Kymlicka, ‘Nation-Building and Minority Rights’, p. 185.

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. ‘’ & ‘’   & 



models, the dichotomy between civic and ethnic nationalism is characterised by a strong normativity.43 Namely, that ethnic nationalism is bad and backward and civic nationalism is good and modern.44 However, history is full of examples of cultural elements inherent to every nation-state, despite a purported ‘ethnocultural neutrality’. For example, it is common knowledge that Western states have tried to integrate citizens into a majority societal structure, characterised by ‘a common language, and a sense of common membership in, and equal access to, the social institutions based on that language’.45 Such attempts have led to repression of ethnocultural diversity and to anti-minority policies.46 More recently, civic integration programmes introduced by many Western states in the turn of the 20th century are seen as a way to ‘renew and strengthen the nations they represented by favouring an official monoculturalism and the discourse of national values and social cohesion’.47 Therefore, ‘integration becomes a preservationist political project’,48 rendering non-nationals ‘deficient’, and inherently ‘other’ until they prove that they are ‘good citizens’.49 This blurring between ethnic and civic models of nation-building calls for the need of another conceptualisation which is better suited to capture the relationship between integration and citizenship policies and notions of nationhood. Kymlicka proposes a refined version of this distinction: liberal and illiberal forms of nation-building and nationalism.50 He argues that the difference between the two lies ‘not in the absence of any concern with language, culture and national identity, but

43 44

45 46

47

48 49 50

Brubaker, Citizenship and Nationhood in France and Germany, p. 4. W. Kymlicka, ‘Multiculturalism and Minority Rights: West and East’ (2002) 4(4) Journal of Ethnopolitics and Minority Issues in Europe, 1–26. Kymlicka, ‘Nation-Building and Minority Rights’, p. 185. An example of such repressions is France’s ban on the use of the Basque and Breton languages in schools or publications, and political associations which aimed to promote minority nationalism in the 18th and 19th centuries. Kymlicka, ‘Nation-Building and Minority Rights’, p. 185. D. Kostakopoulou, ‘The Anatomy of Civic Integration’ (2010) 73(6) The Modern Law Review Limited, p. 936. See also Brubaker, ‘The Manichean Myth’, p. 67, note 18: ‘What does it mean for nation-membership to be based on citizenship? In a thin sense, it means only that nationhood is framed by the state, and that the nation is understood to comprise all citizens – or subjects – of the state’. Kostakopoulou, ‘The Anatomy of Civic Integration’, p. 946. Ibid., p. 949. Kymlicka, ‘Nation-Building and Minority Rights’, p. 196.

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

 ?

rather the content, scope and inclusiveness of this national culture, and the modes of incorporation into it’.51 And then asks if this model can be applied in the CEE countries which are traditionally perceived as emigration countries. [T]he very idea of immigrant integration is only viable for New World countries in which immigration is part of the founding myth of the nation, and cannot work in the more long-standing nations of the Old World. . . . According to this view, the fundamental divide is not between Western democracies and the ECE [referred to as CEE in this paper], but between New World democracies and Old World democracies. Immigrants, within this perspective, can enter the national territory, but they can never really join the nation.52

If this is correct, the consequence would be that integration of migrants, including of refugees both in Western and Eastern European countries, seems a meagre possibility. To the same effect, Acosta Arcarazo and Martire take a quasi-ethnomethodological turn on examining the ‘other’ in Western host societies, slightly reminiscent of Shultz’s Stranger.53 They claim that ‘“integration” now appears to be the code-word to gain access to rights, as the testing of national culture and values has become a powerful tool of control and exclusion’.54 From this perspective, integration policies, and more specifically, integration contracts, communicate a negative message to third-country nationals that they are ‘unwanted’ and under a constant ‘threat of expulsion and exclusion’.55 These processes of ‘othering’ are a common trait between CEE and Western European countries, albeit to a different extent, despite the different integration policies or the lack thereof. Within the framework of ethnic nationalism, ‘othering’ is both a result of a growing ethnic understanding of the nation, as well as a way to perpetuate it by strengthening its basis, turning exclusion into a self-fulfilling prophecy.

51 52 53

54 55

Ibid., p. 200. Ibid., p. 203. Shultz’s Stranger is considered by the in-group ‘a marginal man’ and in this in-group he does not recognise ‘a protecting shelter’, but a ‘labyrinth’ where he needs to adapt. However, this urge for adaptation is seen as an internal need, and not as an external obligation. A. Shultz, ‘The Stranger: An Essay in Social Psychology’ (1944) 49(6) American Journal of Sociology, p. 507. Acosta Arcarazo and Martire, ‘Trapped in the Lobby’, p. 4. Ibid., pp. 4–6.

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. 



12.5 Conclusion Using the lack of Bulgaria’s integration support policy, this chapter showed how the nonexistence of refugee integration support results in a deliberate process of ‘othering’ in the CEE countries. This ‘othering’ is contingent upon an ethnic understanding of the nation and political processes harnessing deeply-seated ideas of ethno-cultural nationhood. Legislative choices are based on multiple factors which reflect (geo) political priorities. On the one hand, Bulgaria does not oppose the EU, therefore it wishes to bring its domestic legislation in compliance with its responsibilities under EU law. This includes efforts to integrate refugees. On the other hand, Bulgaria belongs to the CEE region which is known for its ethnic understanding of nationhood, according to which, in order for one to belong to the nation, one needs to meet some requirements pertaining not only to language knowledge but also to sharing common religion, ethnicity, values, and history. Trapped in this cognitive dissonance, Bulgaria adopted, but then failed to implement rules on integration of refugees, i.e. the Ordinance on Integration Agreement of July 2017. Consequently, its refusal to establish a functioning refugee integration mechanism could be perceived as a manifestation of a deliberate process of ‘othering’ of those who are not regarded to belong to the nation understood in ethnic terms. However, a historical overview of integration policies in all CEE countries under review shows that they had functioning integration programmes for refugees in the not so distant past. This does not mean that they once shared a more civic understanding of nationhood. Both countries in the East and West of Europe have had their histories of nation-building which cannot be changed. They cannot and should not be ignored either. However, the concept, either ethnic or civic, should not be seen as set in stone, but as a flexible notion which allows for differences of extent determined by the political moods of the day. The political context is an important factor which explains these differences of extent. This is a more volatile variable which in combination with certain historical predispositions can be considered to account for the introduction of more liberal or more restrictive citizenship and third-country nationals integration programmes at a given point in time. Following this model, it is claimed that the theoretical framework on nation-building is still relevant and functional. Moreover, it allows for the bridging between the East and the West, overcoming the theoretical impasse between two seemingly incomparable parts of one

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

 ?

whole.56 On an EU level, paradoxically, the mass influx of migrants and asylum-seekers in 2015 and 2016 seems to have resulted in the hardening of anti-immigration rhetoric and policies, thus resulting in a more ‘common European approach’57 between countries in the West and in the East. 56 57

Kymlicka, ‘Nation-Building and Minority Rights’. N. Goebel, ‘Germany Must “Lead the Way” in Refugee Crisis’, Deutsche Welle, 9 September 2015, available at: www.dw.com/en/germany-must-lead-the-way-in-refugee-crisis/a18702937, last accessed 2 June 2019.

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13 Refugees’ Integration into the Labour Market Discharging Responsibility in the UK

      -   ,                ,           

13.1

Introduction

Refugees’ ‘othering’ is often exacerbated by their engagement with or exclusion from the labour market, and their experiences, opportunities, and choices in accessing work are shaped by multiple factors.1 Whilst refugees are offered protection under international, national, and European law, the State has the primary responsibility for safeguarding refugees’ human rights and their integration into the host country.2 Refugees differ from economic migrants in their trajectories and legal protection,3 but both are ‘newcomers’ and often considered as ‘the others’ in the host society. They are often excluded from economic, social, and political participation in the host society, and frequently face discrimination.4 The authors wish to thank Professor Lucy Vickers and Dr Scott Morrison for their suggestions on earlier versions of this chapter. We would also like to thank Ms Iulia Mirzac for her contribution to the research on which this chapter is based. She was involved as research assistant during the first stage (May–July 2017) of the ‘Labour Market Integration of New Refugees: Entry Channels, Strategies and Experiences’ (LAMINER) project, November 2016–May 2017. 1 See e.g. J. Phillimore and L. Goodson, ‘Problem or Opportunity? Asylum Seekers, Refugees, Employment and Social Exclusion in Deprived Urban Areas’ (2006) 43(10) Urban Studies, 1715–1736; L. Bakker, S. Y. Cheung, and J. Phillimore, ‘The Asylum Integration Paradox: Comparing Asylum Support Systems and Refugee Integration in the Netherlands and the UK’ (2016) 54(4) International Migration, 118–132. 2 See also Chapter 12 by Bratanova van Harten. 3 Refugees are defined and protected in international law by the 1951 Refugee Convention and other legal instruments such as the 1969 OAU Refugee Convention, whilst economic migrants find no such definition or protection in international law. 4 OIM, Thematic Paper on Integration and Social Cohesion, Key Elements for Reaping the benefits of Migration 2011, available at www.iom.int/sites/default/files/our_work/ODG/



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

’     

This chapter considers different outcomes for what is denominated in this chapter as newly ‘recognised’ refugees as compared to the cohorts of refugees who are ‘resettled’ in the United Kingdom (UK). The latter are those welcomed and accommodated under the Government’s resettlement schemes selected by the UNHCR in accordance with their ‘vulnerability’ criteria.5 There are four resettlement programmes in the UK: The Vulnerable Persons Resettlement programme; The Gateway Protection Programme; The Mandate Scheme; and the Vulnerable Children Resettlement Scheme from Middle East and North Africa.6 This chapter analyses the legal framework applicable to supporting refugees and evaluates how it operates in practice. It looks at the assistance provided to ‘resettled’ refugees under the Syrian Vulnerable Persons Resettlement Scheme (VPRS),7 comparing and contrasting it to the support available to ‘recognised’ refugees, who were given refugee status in the UK under the asylum process. Drawing on qualitative data gathered from interviews with refugees and associated stakeholders undertaken in the course of a socio-legal project,8 this chapter provides insights into labour market integration services delivered by multiple providers in England. The findings show that support is often fragmented and offered by State, Central Government and Local Authorities, civil society, and private sector agencies without adequate governance mechanisms. The discussion also explores

5 6

7

8

GCM/IOM-Thematic-Paper-Integration-and-Social-Cohesion.pdf, last accessed 19 June 2019. See further https://migrationdataportal.org/themes/migrant-integration. See Chapter 5 by Welfens and Pisarevskaya. For further detail on this point, see https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/789120/Funding_Instruction_gov.uk_ GDPR_-_final.pdf; https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/631369/170711_Syrian_Resettlement_Updated_Fact_ Sheet_final.pdf; and www.gov.uk/government/publications/gateway-protection-pro gramme-information-for-organisations/gateway-protection-programme, last accessed 3 September 2019. In September 2015, the government of David Cameron pledged to resettle 20,000 of the most vulnerable Syrian refugees in the UK by May 2020. In July 2017 the Home Secretary announced the expansion of the VPRS to include other nationalities that have fled Syria, acknowledging other groups that have also been displaced by the conflict. The scheme now covers vulnerable refugees in the Middle East and North Africa (MENA). From July 2017, local authorities might receive non-Syrian nationals as well as Syrian nationals through the VPRS. References to resettled refugees from Syria in this work are intended to reflect all those eligible for the VPRS, regardless of nationality. The socio-legal pilot project, which underpins this chapter ‘Labour Market Integration of New Refugees: Entry Channels, Strategies and Experiences’ (LAMINER) was funded by Oxford Brookes University.

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.  



how refugees engaging with diverse actors encounter multiple, overlapping challenges, which facilitate or inhibit their labour market integration. To capture refugees’ integration into the labour market, this study adopted a context-sensitive approach, analysing the functioning of the system in a county in the south of England which participated in the VPRS. This helps to understand the contextually specific practices of actors and agencies, and the experiences of refugees who engage with them. In addition to this local dimension, the study focuses on entry channels of refugees to evaluate the diverse challenges9 impacting on their experiences of accessing the labour market.

13.2

Discharging Responsibility for Labour Market Integration

Research has shown that work and engagement with the labour market influences migration and integration experiences,10 and that the employment rate of refugees is often significantly lower than for other migrant categories.11 Studies have concluded that various networks, organisations, and institutions including charities, social enterprises, nongovernmental organisations, and branches of faith-based, i.e. the so-called third sector organisations (TSOs), are also involved in shaping migrants’ settlement and integration.12 Arguably, the UK continues to

9

10

11

12

E. D. Campion, ‘The Career Adaptive Refugee: Exploring the Structural and Personal Barriers to Refugee Resettlement’ (2018) 105(1) Journal of Vocational Behaviour, 6–16; S. Y. Cheung and J. Phillimore, ‘Refugees, Social Capital, and Labour Market Integration in the UK’ (2014) 48(3) Sociology, 518–536; L. Knappert, A. Kornau, and M. Figengül, ‘Refugees’ Exclusion at Work and the Intersection with Gender: Insights from the Turkish–Syrian Border’ (2018) 105(1) Journal of Vocational Behavior, 62–82. P. Lugosi, H. Janta, and B. Wilczek, ‘Work(ing) Dynamics of Migrant Networking among Poles Employed in Hospitality and Food Production’ (2016) 64(4) Sociological Review, 894–911. A. Bloch, ‘Refugees in the UK Labour Market: The Conflict between Economic Integration and Policy-Led Labour Market Restriction’ (2007) 37(1) Journal of Social Policy, 21–36; A. Bloch, ‘The Labour Market Experiences and Strategies of Young Undocumented Migrants’ (2013) 27(2) Work, Employment and Society, 272–287; I. Ruiz and C. Vargas-Silva, ‘Differences in Labour Market Outcomes between Natives, Refugees and Other Migrants in the UK’ (2018) 18(4) Journal of Economic Geography, 855–885. S. J. Steimel, ‘Negotiating Refugee Empowerment(s) in Resettlement Organizations’ (2017) 15(1) Journal of Immigrant and Refugee Studies, 90–107; L. Mayblin and P. James, ‘Asylum and Refugee Support in the UK: Civil Society Filling the Gaps?’ (2019) 45(3) Journal of Ethnic and Migration Studies, 375–394.

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

’     

have a problematic strategy for supporting refugees’ post-determination stage,13 delegating most of its responsibility to TSOs. It is therefore important to explore limitations of the scope and focus of State support and to consider the forms of support provided by non-State actors. It is also necessary to question whether the UK’s policies and intervention strategies in this regard exhibit limitations resulting in differences in labour market engagement amongst refugees in accordance with their entry channels. This chapter reflects on whether and how the State relinquishes its responsibility towards refugees in relation to labour market integration, and how the provision of support for labour market entry and progression is subsequently ‘distributed’ among a variety of actors. Within the context of this discussion, the term ‘distributed’ is used to characterise situations where support is provided or performed by a range of actors. It is therefore useful to distinguish between ‘distributed’ and ‘delegated’ responsibility. Within distributed scenarios, a variety of State and nonState actors or agencies may assume responsibility for providing support according to their individual goals and capacities and funding. Importantly, actors and agencies may interact or be aware of each other, but knowledge of each other’s practices may be only partial; and there may be minimal or no interaction between them. There is no underlying assumption of integration or coordination of activities between actors, although this may be present. It is also noteworthy that non-State actors may act primarily out of compassionate responsibility, prompted by a sense of humanity or community solidarity, but have no legal obligation to do so.14 Given the focus on the State’s duty towards refugees, the distinction between ‘distributed’ and ‘delegated’ responsibility has a pivotal role in this debate. ‘Delegation’ may involve more sustained attempts, in this case by State actors, to coordinate non-State ones who assume responsibility to deliver supporting services. ‘Delegation’ may 13

14

Ministry of Housing, Communities & Local Government, Integrated Communities Strategy Green Paper, 14 March 2018, available at www.gov.uk/government/consultations/integratedcommunities-strategy-green-paper, last accessed 16 April 2019; UN High Commissioner for Refugees. UNHCR Study: Integration Efforts Advancing in UK Syria Refugee Resettlement, 9 November 2017, available at www.unhcr.org/uk/news/press/2017/11/5a0074234/unhcrstudy-integration-efforts-advancing-in-uk-syria-refugee-resettlement.html, last accessed 16 April 2019. For the concept of solidarity see S. Morano-Foadi, ‘Solidarity and Responsibility: Advancing Humanitarian Responses to EU Migratory Pressures’ (2017) 19(3) European Journal of Migration and Law, 227.

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.   



therefore involve different forms of direct intervention by State authorities, such as funding providers of integration services and defining the scope, scale, and standards of service provision. Refugees have to utilise a variety of actors and institutions, which often provide domain-specific assistance, with different organisations and their agents offering support according to their own institutional objectives and capacities. The assistance provided by actors and agencies may, therefore, be more or less formal or professionalised; the scope and focus of their practices, however, vary; their activities may not be centrally directed, and they are funded through different mechanisms. Thus, support provided in a ‘distributed’ situation is (re)interpreted and enacted in potentially differing ways by a diverse ecosystem of agents operating across different geographical contexts. This ‘distributed’ support scenario arguably responds to the limited ability of the State to adequately meet refugees’ needs. Hence, this chapter reflects on whether such dispersed forms of support sufficiently meet the State’s legal obligations towards refugees, and whether they shape practices and experiences of ‘othering’.

13.3

The Legal Framework towards Refugees’ Labour Market Integration

13.3.1 Obligations Stemming from International Treaties The legal framework in relation to the recognition of refugees’ status and their rights post-determination is based on international, European, and national law. The State is the main actor with legal responsibility under international refugee law to protect and integrate refugees into the host society. Therefore, as signatory to the 1951 Convention relating to the Status of Refugees (hereafter ‘the Refugee Convention’),15 the UK’s primary obligation is to grant protection to those who are entitled under the Convention’s grounds. Incorporated into such obligation to offer protection is the duty to accord post-refugee determination rights; in particular, the right to access employment. The Refugee Convention requires States to grant refugees ‘the most favourable treatment’ accorded

15

UN General Assembly. Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, 189: 137; and UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, 606: 267.

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

’     

to nationals of a foreign country in the same circumstances, regarding the right to engage in wage-earning employment.16 Article 17 of the Refugee Convention is said to be ‘of particular importance. Because of their limited resources and their status, wage-earning employment is the only type of employment to which most refugees can aspire’.17 It is not only under refugee law that such rights to work are granted, it also sits in a wider framework of rights to work and rights at work under international law.18 These instruments offer comprehensive protection of workers’ rights, but right to work per se does not guarantee a job. Whilst the Refugee Convention guarantees a right to engage in wage earning employment in Article 17, a job might not be available. Nevertheless, States must take steps to foster full and productive employment.19 Moreover, embedded in the right to work is also the States’ obligation not to discriminate against refugees.20 The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the right to work, including fair and just conditions of work. This right is essential for realising other human rights and forms an integral and inherent part of human dignity.21 As a result, the UK, as State party to the ICESCR, must ensure the progressive realisation of the exercise of the right to work and adopt measures aiming at achieving full employment for refugees, in compliance with its obligations under refugee and international law.22 Such obligation also encompasses measures to guarantee non-

16

17

18

19 20 21

22

Ibid. Refugee Convention, Art. 17, 18, and 19; UN High Commissioner for Refugees (UNHCR). Rights of Refugees in the Context of Integration: Legal Standards and Recommendations, June 2006, POLAS/2006/02. UN High Commissioner for Refugees (UNHCR), The Refugee Convention, 1951: The Travaux préparatoires Analysed with a Commentary by Dr. Paul Weis, 1990. For example, UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Art. 23; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, 993: 3, Art. 6–8; International Labour Organisation, C 122, Employment Policy Convention, 1964, available at www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:: P12100_INSTRUMENT_ID:312267, last accessed 16 April 2019; Council of Europe, European Social Charter (Revised), Strasbourg, 3 May 1996, ETS 163; European Union, Charter of Fundamental Rights of the European Union, OJ C 326, 26 October 2012, pp. 391–407, Art. 15; UN General Assembly, Resolution: Transforming Our World: The 2030 Agenda for Sustainable Development, 25 September 2015, A/70/L.1. Ibid., ILO Convention No 122. Refugee Convention, Art. 3. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18. ICESCR, Art. 6; Refugee Convention, Art. 17.

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discrimination and equal protection of employment, including ‘the right of access to employment for disadvantaged . . . individuals and groups, permitting them to live a life of dignity’.23 Refugees, as everyone else in the UK, must enjoy the same human rights and should have equal access to them.24 They are protected under the characteristic of ‘race’ as it is illegal to discriminate against because of one’s colour, ethnic origin, or nationality. Hence, UK public authorities have a general equality duty to ‘have due regard to the need to eliminate discrimination; advance equality of opportunity; and foster good relations – when making decisions and setting policies,’ and this duty also applies to refugees.25

13.3.2 Obligations Stemming from EU Law Within EU law, differing approaches to the integration of refugees after determination exist across Member States, as they retain sovereign rights in this field. EU States should provide a ‘dignified’ life for refugees, on par with the rights enjoyed by its citizens. This includes access to education and to the labour market, access to public relief and assistance, including health facilities, the possibility of acquiring and disposing of property, and the capacity to travel with valid travel and identity documents, even enjoying a limited form of freedom of movement.26 Under its special protocol on visa, asylum, and migration laws, the UK opted into individual measures, such as the 2003 Reception Conditions Directive,27 which laid down minimum standards for the reception of asylum seekers ‘to ensure them a dignified standard of living and comparable living conditions in all Member States’.28 The Qualification Directive29 is also

23 24

25

26

27

28

29

CESCR, General Comment No. 18: The Right to Work. Equality Act 2010, available at www.legislation.gov.uk/ukpga/2010/15/contents; Section 149, last accessed 14 April 2019. Ibid., The Equality Act 2010; Equality and Human Rights Commission, General Duty for Great Britain, 19 February 2019, available at www.equalityhumanrights.com/en/adviceand-guidance-faq/general-duty-faqs-gb, last accessed 14 April 2019. See Council 2011/51 of the European Parliament and of the Council amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection, OJ L 132, 19 May 2011, p. 1. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ 2003 No. L31/18, 6 February 2003. Whilst this chapter does not focus on asylum seekers, their treatment is very relevant for an understanding of the problems encountered by ‘recognised’ refugees. Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as

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

’     

applicable in the UK; Article 26 of the Directive provides for access to employment to be as soon as possible after refugee determination. It also states that national law applies in the regulation of remuneration, access to social security systems for employed or self-employed activities, and other conditions of employment.

13.3.3 Implementing Policies to Include Refugees In view of such obligations incumbent on the state, the duty to offer protection must be discharged at central or local Government level, as part of the State’s legal responsibility under international refugee law, human rights, and relevant EU law. It has to be stressed that legal responsibility of the State is not only to grant protection, i.e. accord refugee status, but also to confer post-determination rights and entitlements. In other words, State responsibility should encompass a sustainable and reliable infrastructure to deliver an effective humanitarian protection post-determination, which means access to integration, to livelihood, and a right to dignity, of which an inherent and inseparable part is the right to work. The extent to which responsibility for meeting legal norms is formally, or informally, ‘delegated’ from the State to other actors is paramount to understanding whether delegated obligations are part of a coherent and well-planned constructive strategy. Thus, the relinquishment of responsibility could take different forms. This chapter argues that when ‘delegation’ represents an explication of a precise policy, enacted through planned, coordinated, supported and monitored actions, it could constitute a constructive strategy. Sharing responsibility with localised service providers and actors who are better able to understand and respond to refugees’ distinct needs represents an opportunity to create bespoke practices of support. However, when TSOs and private sector contractors take responsibility for the provision of support, often underfunded and lacking state enablement, this constitutes a form of ‘sovereign abandonment’,30 which leads to insufficient compliance with international, refugee, and European law. The present work questions the effectiveness of the UK’s response to refugees’ needs, particularly in relation to the facilitation of their entry

30

Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L 304/12, 30 September 2004, p. 12. J. Darling, ‘Becoming Bare Life: Asylum, Hospitality, and the Politics of Encampment’ (2009) 27(4) Environment and Planning D: Society and Space, 649–665.

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into and transition through the labour market. In the UK, the explication of such duties is performed by a variety of State and TSOs; consequently, State responsibility towards refugees is (re-)interpreted, and thus enacted, in diverse ways by different stakeholders. By contrast, ‘new governance’ scholars argue that a more polycentric, decentralised, and consensual approach is more responsive, legitimate, and effective than top-down regulatory methods.31 In literature,32 particularly on networks, the role of NGOs and companies has long been recognised, but the issue of responsibility and accountability is often neglected.33 In order to assess whether the UK sufficiently meets the State’s legal obligations towards refugees, the remainder of this chapter examines the UK’s VPRS to reflect more broadly on the practices adopted by the UK Government for refugees’ labour market integration.

13.4

The UK’s Syrian Vulnerable Persons Resettlement Scheme (VPRS)

The manner in which the responsibility of the State is discharged depends on how delegation occurs. In principle, the system has the potential to function effectively when properly delegated. The VPRS is one of the schemes available to refugees who enter the UK as referred by the United Nations High Commissioner for Refugees (UNHCR). The effectiveness of the scheme can be evaluated by examining the core criteria of: (a) planning and coordination; (b) support; and (c) monitoring of delegation. Each criterion is applied to the VPRS and examined in turn, to assess whether the UK sufficiently conforms to its legal obligations.

13.4.1

Planning and Coordination

The UK Government engages with international partners, local authorities (LAs) and service providers, such as community sponsorship, to enhance refugees’ experiences through the VPRS. The scheme is a

31

32

33

N. Gunningham, ‘New Collaborative Environmental Governance: The Localization of Regulation’ (2009) 36(1) Journal of the Law and Society, 145–166. D. Marsh and R. A. W. Rhodes, Policy Networks in British Politics (Oxford: Clarendon Press, 1992). C. Scott, ‘Private Regulation of the Public Sector: A Neglected Facet of Contemporary Governance’ (2002) 29(1) Journal of Law and Society, 56–76.

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

’     

national and voluntary joint programme involving the Home Office, the Department for International Development, the Ministry of Housing, Communities, and Local Governments. In addition, the UNHCR and the International Organisation of Migration (IOM) also contribute to the initial phase of resettlement of refugees, mainly outside the host country. Primary responsibility for the scheme rests with central Government, even if labour market integration is mainly devolved.34 This is limited to discharging State responsibility towards ‘resettled’ refugees, which is explicated locally through LAs’ actions. Although their intervention differs in content and manner, LAs are required to follow Home Office guidance. Provided resettlement outcomes are achieved, LAs’ involvement presents a degree of freedom, in that they can reject a resettlement case or request an alternative one. LAs are stepping up to support the Government within the planning provided by the latter. The scheme is supervised by the UK Regional Strategic Migration Partnerships, which are funded by the Home Office.35

13.4.2

Support

Participation in the resettlement programme is voluntary for LAs, and there is financial support for their involvement. For the current VPRS programme, LAs are supported through specific allocation of funding.36 The tariff is split by year and reduced each year that the refugee is in the UK.37 This form of descending payments reflects the expectation that refugees will become increasingly self-sufficient through paid work. In fact, the programme aims to support ‘resettled’ refugees by giving them 34

35

36

37

See Local Government Association, Guide for Local Authorities on Syrian Refugee Resettlement, London, 30 June 2016. www.local.gov.uk/syrian-refugee-resettlement-guide-localauthorities, last accessed 14 April 2019; and https://assets.publishing.service.gov.uk/govern ment/uploads/system/uploads/attachment_data/file/789120/Funding_Instruction_gov.uk_ GDPR_-_final.pdf, last accessed 2 September 2019. There are 12 SMPs: East Midlands SMP, London SMP, North East SMP, Northern Ireland SMP, North West SMP, Scotland SMP, South East SMP, South West SMP, Wales SMP, West Midlands SMP, and Migration Yorkshire. Details of Regional Strategic Migration Partnerships (RSMP) are available at www.migrationni.org/regional-partners, last accessed 2 September 2019. Home Office, UK Resettlement funding instructions, available at www.gov.uk/govern ment/publications/uk-resettlement-programmes-funding-instruction-2018-to-2019, last accessed 14 April 2019. See P. Tyler and C. Cooke, Resettling Refugees – Support after the First Year: A Guide for Local Authorities (York: Migration Yorkshire and the Regional Strategic Migration Partnership for the Yorkshire and Humber region, 2017).

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access to education, including language provision, healthcare, social care and, where possible, employment. The Government and LAs can have a vast array of potential support networks such as faith-based organisations and charities; for example, organisations such as the Salvation Army, the UK Red Cross, and also now private groups sponsor families for resettlement. In July 2016, the Home Secretary and Archbishop of Canterbury launched ‘The Community Sponsorship Scheme’.38 The scheme has encouraged charities, businesses, and community groups to sponsor refugee families, supporting their resettlement and integration.39 Thus, through community sponsorship,40 community groups, often faith-based, work alongside the VPRS. This is arguably an example of distributed responsibility where State actors attempt to consolidate the frames of reference for an eclectic range of actors and to coordinate, to some extent, their practices in order to fulfil their legal obligations towards refugees. Other forms of support include professional support. LAs are required to provide integration casework support at an individual level. This consists of a personal integration plan which includes the individual’s past work experiences, skills, education, health, etc., as well as their expectations and aspirations in the UK.

13.4.3

Monitoring

The personal integration plan is supposedly monitored and reviewed with refugees every few weeks.41 LAs are free to decide how best to use VPRS funding; however, expenditure is closely monitored. They must be able to provide evidence of how funding has been used to support individual refugees in accordance with the aims of the VPRS for 38

39

40

41

www.theguardian.com/world/2016/jul/19/archbishop-of-canterbury-syrian-family-refu gee-sponsorship-scheme, last accessed 2 September 2019). Ministry of Housing, Communities & Local Government, Department for International Development, Home Office and The Rh Hon Amber Rudd MP, 2016. See for example: https://forrefugees.uk/community-sponsorship/, last accessed 16 April 2019. The plan normally covers short and long term objectives in relation to benefits and finance, housing, education (including schooling of dependent children), English language, training and volunteering, health and wellbeing, social activities and leisure, employment, family life and relationships between close and extended family members (family tracing, reunification), and permanent settlement (immigration rules, rights and requirements). See www.local.gov.uk/sites/default/files/documents/syrian-refugee-reset tleme-229.pdf, last accessed 14 April 2019.

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

’     

monitoring and evaluation purposes. Some core expectations require oversight and management by LAs; for example, they must be able to demonstrate that the funding has been used to support refugees to achieve integration and self-sufficiency, including ongoing integration into the community and tailored employment support.42

13.4.4

Operational Challenges in the VPRS

The empirical research conducted suggested that the operationalisation of the VPRS presented a number of practical challenges. The LA works with limited guidance from the Central Government. This was highlighted by the County Council Official coordinating the VPRS programme.43 Most programmes supporting refugees into work are offered by community actors. Even Home Office guidance on the financial aspects of the resettlement programme is rather limited44. Fragmentation was identified by other stakeholders in the empirical findings.45 Primary data also showed that charities are often the end-provider of tailored support to refugees.46 In order to comply with State obligations, the LA passes responsibility to TSOs. However, such passing of responsibility does not necessarily reflect the requirements of planned, coordinated, supported, and monitored ‘delegation’. The involvement of different actors, can, in theory, reinforce commitments and create coordinated forms of solidarity as they create pathways to employment for refugees.47 However, the notion of ‘distributedness’ can be adopted to appreciate the limitations of State actions and to understand the support offered to refugees by a disparate network of public and private actors. The VPRS case study is a good 42

43 44

45 46 47

See further Tyler and Cooke, Resettling Refugees; E. Jamroz and P. Tyler, ‘Syrian Refugee Resettlement – A Guide for Local Authorities’, Migration Yorkshire, Spring 2016, available at www.migrationyorkshire.org.uk/?page=resources, last accessed 14 April 2019. Interview no XXII, March 2018. In September 2015, the programme became the joint responsibility of the Home Office, the Department for International Development, and the Department for Communities and Local Government, who established a joint team to manage the programme located in the Home Office (the programme team). There is no one model of resettlement delivery and local authorities already participating in the SRV programme have adapted different models. See www.local.gov.uk/syrian-refugee-resettlement-guide-local-author ities, last accessed 14 April 2019. Interview no XXI (NGOs worker), September 2017. Interviews no 5 (Recognised refugee), July 2017, and no 25 (Resettled refugee), May 2018. Interview no 4 (Recognised refugee), July 2017.

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illustration of distributed responsibility as support passes from the LA to other actors. Although this scheme is, in principle, a form of delegated responsibility and its remit is within a prescribed and articulated programme, its implementation has been fragmented. This is due to the fact that LAs have a broad programme in which they try to make tailor-made adjustments, depending on the local community and NGOs. There is a risk that LAs work in isolation, with a minimum of shared learning between them and without an integrated, all-encompassing approach to securing employment for refugees.48 The question is whether the Government can claim that this is a legitimate delegation of its responsibility towards refugees and, consequently, is effectively distributed.

13.4.5 Experiences of ‘Recognised’ and ‘Resettled’ Refugees All refugees may engage with multiple organisations such as employment agencies and the State-operated Job Centres; however, ‘recognised’ refugees do not receive the same level of assistance from the Government as ‘resettled’ ones. Contrary to ‘resettled’ refugees, those who enter through the asylum route have the urgency of finding any job to generate income as there are limited statutory resources available to aid their resettlement. Negotiating entry into the labour market requires them to engage with multiple agencies, such as State operated Job Centres. However, these provide services to a wider set of stakeholders seeking to engage with the labour market. Consequently, their staff do not consistently receive appropriate training to appreciate or accommodate refugees’ backgrounds and specific mental and physical vulnerabilities. Therefore, refugees may receive the same type of service as other native job seekers despite their different trajectories and needs.49 The scope of State employment agencies’ functional activities does not necessarily extend to supporting refugees’ skills capacity building, which place limits on their future growth opportunities. In many cases, highly qualified refugees expressed that they felt ‘forced’ to take up positions much below their qualifications or risk being sanctioned and losing their

48

49

All Party Parliamentary Group on Refugees, Refugees Welcome? The Experience of New Refugees in the UK, April 2017, available at https://reliefweb.int/report/world/refugeeswelcome-experience-new-refugees-uk-report-all-party-parliamentary-group, last accessed 19 April 2019. Interview no XX (NGO worker), September 2017.

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

’     

benefits.50 Significant barriers to accessing the labour market remained for this group of refugees. Benefit entitlements, training programmes and even language courses were perceived to be limited in scope or scale. Often their labour market access was hindered by the fact that they were not offered courses to learn English or improve their skills, but they urgently needed a job to become self-sufficient.51 Furthermore, no comprehensive employment package was available after funding for a national programme, the Refugee Integration and Employment Service (RIES), ended. Even local charitable projects such as the ‘Access First Employment Service’, and the (county) ‘Refugee and Asylum Seeker Training, Education and Employment Partnership’ once run by local refugee organisations, were closed due to lack of funding.52 Refugees were often in limbo when trying to access work or training to match their skills and abilities. Resettled and recognised refugees frequently expressed that they did not feel they had adequate support to find a job that matched their previous work experience or qualifications.53 The lack of specific services provided by the Government and the absence of a singular, overarching agency or functional ecosystems of connected agencies triggered the intervention of TSOs or informal networks support. This resulted in many charities expanding services to bridge the gap as ‘. . . many [refugees] were left to fend for themselves in an unfamiliar job market’.54 Charities focusing specifically on asylum seekers and refugees were often cited by the interviewees as the sole alternative they had to receiving the support they needed.55 They often relied on charitable organisations, whose mission was to provide a wider range of supporting services, and which regularly helped to create temporary and unpaid work experience opportunities. Refugees’ narratives revealed that their engagement with these diverse organisations often placed them on particular trajectories for subsequent entry into and engagement with the labour market.56 Depending on the

50 51 52 53 54

55

56

Interviews no 1 and 6 (Recognised refugees), June/July 2017. Interviews no 2 (Recognised refugee), June 2017 and no 25 (Resettled refugee), May 2018. Interview no XX (NGO worker), September 2017. Interviews no 24 (Resettled refugee), May 2018 and no 25 (Resettled refugee), May 2018. The Guardian, ‘Refugees Will Have the Right to Work – Why Not Employ Them?’, The Guardian, 11 September 2015, available at www.theguardian.com/sustainable-business/ 2015/sep/11/business-refugee-crisis-employment-work-asylum-seekers, last accessed 13 June 2018. Interviews no 1 and 2 (Recognised refugees), June 2017; Interviews no 24 and 25 (Resettled refugees), May 2018. Interview no 5 (Recognised refugee), July 2017.

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organisation and the individual skills set, ‘recognised’ refugees could transform such temporary and voluntary opportunities into longer term and paid positions in charities or use them to obtain sustainable employment elsewhere. Although the assistance provided by some of these non-governmental organisations was often tailor-made to the needs of refugees or individualised to their demanding lives, the system risked becoming discontinuous, with the scope and quality of support depending on refugees’ location and the availability of opportunities in that particular locality.57 During the asylum process, refugees waiting to receive recognised status were housed and provided for by the Home Office, but they did not have a choice in their dispersal around the UK. Thus, their access to support in finding a job after recognition was determined in large part on where new ‘recognised’ refugees were dispersed to during the asylum process or where they chose to move after recognition; if they moved at all. The presence and capacities of local service providers in an area could create fragmentation as the forms of support were determined by diverse policies. The role of informal connections and networked resources was raised repeatedly in interviews. These were often cited as important for emotional and instrumental support, including contacts and information. However, it is important to recognise that the substance and thus the social capital of these networks varied. Networks and communities characterised by strong, embedded ties could offer multiple forms of support, but they could also be sources of tension; for example, if they subjected members to surveillance they potentially exposed them to problematic dependencies. There was also a perceived risk that conservative social values expressed by members inhibited women’s mobility and access to work.58 Thus, all these factors suggest potential limitations to devolved ‘distributed’ mechanisms to meet legal obligations. Community-building activities developed by NGOs, associations, or other entities, and/or informal networks such as family, friends, and neighbourhood or ethic/ religious communities, have the potential to fill the gaps caused by insufficient State interventions. However, ‘leaving’ the State responsibility to provide employment services to civil society risks creating fragmentation and unregulated support across distributed networks, with the 57 58

Interview no 25 (Resettled refugee), May 2018. Interview no 5 (Recognised refugee), July 2017.

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

’     

potential to radically shape refugees’ experiences of inclusion, exclusion, and ‘othering’.

13.5 Conclusion The question raised in this chapter was whether the transfer of responsibility from the State to other actors, such as TSOs, is an appropriate or adequate strategy, particularly if it runs parallel to cuts in support for NGOs and charities. Devolved mechanisms adopted in relation to refugees ‘resettled’ under the VPRS and ‘recognised’ refugees can exhibit a number of limitations, at times amplifying forms of ‘othering’ through exclusion from employment. Compliance of State obligations may rely on other actors, thus moving the focus away from the State. This can reduce or even withdraw the support provided by public actors, limiting it to specific spatial contexts or domains of practice, e.g. job mediation services in a given geographical area. Within a ‘distributed’ system of support, responsibility is enacted by different actors. There is no assumption that any higher-level actor, such as the State or local authority, directly funds or coordinates their activities, or even creates shared conceptions of what support is or how it should be performed among these actors. These supporting actors may be aware of other actors operating in proximity or in similar activity domains. They may or may not interact; they may collaborate to pursue common goals, or even compete for resources. In the context of this discussion, disparate actors perform similar duties of responsibility towards refugees. However, within such a spatially dispersed system, the scope, nature, and focus of support are potentially (re)defined by different agencies and actors, according to their own resources, capacities, and objectives. As noted at the outset, ‘distributed’ is different from ‘delegated’ responsibility. ‘Delegation’ may involve sustained attempts by State actors to properly charge certain actors with the responsibility to deliver supporting services and to explicitly define their forms, practices and means. For example, forms of ‘delegation’ are present for ‘resettled’ refugees, but in practice, the scope, scale, and standards of service provision are not necessarily operationalised. This resembles more distributed practices rather than strategically ‘delegated’ forms of responsibility from the State to other providers. This is exacerbated for ‘recognised’ refugees, who have to utilise a variety of actors and institutions, which often provide domain-specific assistance, with different organisations and their agents using their own institutional goals, frameworks, and logics.

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. 



The issues identified in this study have several implications which may inform future research and interventions in support of refugees. A first key issue which deserves attention concerns the identities ascribed to different groups of refugees and the subsequent support available to them. The ‘distributedness’ of support services may be more detrimental to ‘recognised’ refugees than to ‘resettled’ refugees, thereby raising the question of potential discriminatory treatment amongst refugees, which does not have a reasonable and objective legal justification. Expressed differently, ascribed statuses and their affordances may lead to different enactments or experiences of ‘othering’ for refugees in relation to ‘indigenous’ locals or even other migrants, but also among different refugees. Specifically, differentiating between ‘resettled’ and ‘recognised’ refugees, and distinguishing the resources available to support their integration, including engagement with the labour market, can result in differing post-determination trajectories and experiences of exclusion. Legally and ethically, such a differentiation of treatment based on their entry channels is also questionable. Although the trend to attribute differential treatment to ‘recognised’ and ‘resettled’ refugees is in line with other developed countries’ approaches, it still raises concerns as to its fairness and the raison d’être of Governments’ agendas on reception of refugees. It is, therefore, important to explore further how identities ascribed to different groups can shape their post-determination trajectories. Furthermore, it is necessary to examine further the implications of refugees receiving different treatment, depending on their entry channel into the host society. Understanding refugees’ specific experiences can thus be used to drive changes in policy and to create targeted interventions in service provision that address challenges that are unique to them. A second, related issue is that the various actors and agencies that may be able to support refugees do not necessarily have the resources (financial or other) to tailor their services to meet the specific needs of refugees, and their individual practices are inadequately coordinated or integrated, which, again, amplifies refugees’ social exclusion. In a political climate of austerity, the socially excluded are the ones who suffer the most; but facilitating access to the labour market is a positive strategy both in the short and long term. Adequately funded and strategically coordinated enactments of distributed responsibility, underpinned by acknowledgement of the legal responsibility towards refugees under international refugee and human rights law as well European and national law, should trigger the creation of holistic integration policies which cater for the needs of both ‘recognised’ and ‘resettled’ refugees. The way forward

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

’     

provided by the Government is ‘to help organisations take a structured but flexible approach to their strategies and interventions . . . not to interfere . . . but to offer guidance and tools where necessary, and to support sharing best practice’.59 We submit, these policies should be driven by the logic that the effective integration of refugees into the labour market has the potential to support their independence, thus representing a mutually beneficial investment for the State, TSOs, and refugees themselves. 59

Home Office, Indicators of Integration framework 2019 third edition, published 3 June 2019, available at www.gov.uk/government/publications/home-office-indicators-of-inte gration-framework-2019, last accessed 14 October 2019.

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PART IV ‘Othering’ in the EU

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14 When a Country Is Not a Home The Numbered (EU Citizens) ‘Others’ and the Quest for Human Dignity under Brexit

 

14.1

Introduction

Elias Canetti, the winner of the 1981 Nobel Prize for Literature, published a play entitled ‘The Numbered’ in 1984.1 The ‘Numbered’ were citizens of an oppressed society who did not bear any names and were wearing lockets around their necks which supposedly included information on the years they had to live. This information was only accessible by the Keeper of the Lockets. One day, a citizen decided to rebel against the tyranny of unbearable determinism and broke his locket. To his amazement, he discovered that the lockets, which were supposed to keep secretive information about life and death, were empty. In discovering this fact, the ‘Numbered’ regained their right to live. You have empty lockets hanging round your necks. The lockets are empty. You have not even the years that you think you have. You have nothing. Nothing is certain. The lockets are empty. Everything is as uncertain as it ever was. He who desires to die, can die today. He who does not desire it, dies nonetheless. The lockets are empty. The lockets are empty,2

protested Fifty, a character in the play. EU citizens living in the United Kingdom and EU citizens-qua-UK nationals living in other Member States following the referendum on the UK’s continued membership of the EU on 23 June 2016 became ‘the numbered’. Their identities were redefined overnight not by them – they

1 2

Elias Canetti, The Numbered: A Play (London: Marion Boyars Publishers Ltd., 1984). Ibid., p. 86.



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

      : 

continued to work, live, and behave in the way they had done for years – but by state authorities and their co-EU citizens. Excluded from participating in the referendum on the UK’s continued membership of the EU, notwithstanding their legitimate interests as employees, self-employed, and service providers, taxpayers, members of the public, and stakeholders in the future of the countries they called ‘homes’, the way they were perceived and treated by the native populations, political elites, authorities, and the media changed dramatically. They became ‘others’ against their will and despite their contributions over decades or years. The change was noticeable everywhere in the United Kingdom, even in metropolitan London. Animosity, resentment, and even violence directed at them were reported frequently in the press.3 Hate crime increased dramatically as well.4 For several months following the referendum the numbered were bystanders and invisible in the political arena despite the fact that their legal position was under threat; on the official exit day, they would no longer enjoy their EU citizenship rights in the UK and UK nationals living in EU Member States would lose their EU citizenship rights. NGOs were set up to articulate the concerns of the numbered, such as, inter alia, ‘the 3 million’ in the UK and ‘British in Europe’,5 and to campaign for citizens’ rights. It was nearly a year following the referendum that the issue of the arbitrary loss of EU citizenship rights became an articulated political issue and an official concern.6 By that time, unfortunately, a discourse on a ‘natural’ cancellation of rights had become normalised. The Annex to the Recommendation for a Council Decision authorising the opening of negotiations for an agreement with the United Kingdom of Great Britain 3

4

5

6

See, for example, ‘Dutch Woman with Two British Children Told to Leave the UK after 24 Years’, The Guardian, 28 December 2016. It is worth mentioning here that the GQR poll conducted by the TUC in 24–27 June 2016 revealed that ‘Leave’ voters were mainly concerned about the free movement of EU citizens and migration figures: https://gqrr .aoo.box.com/s/xb5sfzo19btsn74vawnmu7mm033plary, last accessed 15 August 2019. It was recently reported that hate crime has increased; 71,251 incidents took place in England and Wales in 2018; ‘Revealed: Big Rise in Public Racism since Brexit Vote’, The Guardian, 21 May 2019, p. 1. ‘British in Europe’ has been campaigning for the protection of the rights of UK citizens resident in the EU 27 post-Brexit; https://britishineurope.org, last accessed 15 August 2019. It was reported that the Secretary of State for International Trade had described EU nationals in the UK as one of the ‘main cards’ in Brexit negotiations; The Guardian, 4 October 2016.

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. 



and Northern Ireland stated that: ‘. . . safeguarding the status and rights of the EU27 citizens and their families in the United Kingdom and of the citizens of the United kingdom and their families in the EU27 Member States is the first priority for the negotiations because of the number of people affected and of the seriousness of the withdrawal for them’.7 In the withdrawal negotiations, agreement was reached on many citizens’ rights provisions in a Joint Report of December 2017 and, subsequently, in Part II of the Draft Withdrawal Agreement of March 2018 in Article 8–35.8 But these did not guarantee the existing EU law-derived rights of the numbered. The option of retaining EU citizenship rights for UK nationals abroad was ruled out on the basis of the existing Treaty provisions which, in accordance with Article 20 TFEU, make EU citizenship conditional on the possession of Member State nationality while EU citizens in the UK would automatically be reclassified as EU citizens living in a third country and, thus, subject to national migration legislation. In this respect, their re-classified status would have to be regulated by temporal conditionalities; that is, it would have to depend on the date of their arrival in the UK, thereby resulting in a gradation of rights before, during, and after the UK’s transitional period.9 Accordingly, the numbered became spectators of a policy of ‘othering’ which was beyond their control and comprehension since it simply disregarded their right to live in security and dignity in the country they called home. The threat of the involuntary loss of rights and equal status deeply affected their identity.10 In fact, it could be argued their identity was essentially confiscated as their rights to their own past, their own time, their own life, and their own future were progressively eroded.

7

8

9

10

The Annex is available at https://ec.europa.eu/info/sites/info/files/annex-recommenda tion-uk-eu-negotiations_3-may-2017_en.pdf, last accessed 15 August 2019. Commons Library Briefing 8269, ‘Brexit: The Draft Withdrawal Agreement’, 26 March 2018. Such a re-classification has been a recurring phenomenon in citizenship and migration legislation. Changes in the legal categories often result in re-classifications and thus to loss of rights and/or status. Governments tend to justify such practices by invoking the necessity of bureaucratic re-evaluations of legal categories. Experts were keen to explore the role of international law in protecting EU citizens’ rights. Arguments invoking ‘acquired’ or ‘vested’ rights under Art. 70(1)(b) of the Vienna Convention on the Law of Treaties (VCLT) were raised but with no success since acquired rights apply only to the rights and obligations of states, not individuals. For a discussion on this, see chapter 6: The protection of EU rights as acquired rights, Lords EU Committee, Brexit: Acquired Rights, 10th Report of Session 2016–2017, 14 December 2016.

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

      : 

A considerable number of ‘the numbered’ experienced this trauma; many published stories of mistreatment and personal accounts of anxiety and trauma as a result of being in limbo.11 A considerable number also decided to depart the UK, thereby creating labour shortages in many sectors of the economy and society, including the national health service and universities,12 citing the presence of a hostile climate in society and discrimination in their treatment. The continuing uncertainty over their futures combined with the very real prejudices of the people which brought racism and xenophobia into the open have been cited as the main determinants of exit.13 Most of them were reporting that they could no longer recognise the country they called home and that society had changed. Deportations of EU citizens also increased. The overall message has been that EU citizens simply do not matter or that they are unwanted because ‘the country had been swamped with Europeans’.14 It is worth mentioning here, however, that EU citizens living in the UK were not alone in experiencing traumatic realities. Verena K. Brändle, Charlotte Galpin, and Hans-Jörg Trenz studied anti-Brexit mobilisation, particularly by young Britons, and found that the Brexit vote was accompanied by a sense of bereavement.15 Defending their European identity, British nationals protested against populist narratives of nationhood and belonging and expressed grief over the loss of their EU citizenship rights. According to Brändle et al., the pro-EU mobilisation showed that for most British people, questions of identity and belonging are experienced in a much more diffuse and ambivalent way and that a significant number of people value their European belonging. 11

12

13

14

15

The reader could access over 150 testimonies of EU citizens in the UK in E. Remigi, H. De Cruz, P. Blackburn, C. Killwick, D. Williams, and S. Pybus (eds), In Limbo: Brexit Testimonies from EU Citizens in the UK, 2nd ed. (London: Byline Books, 2018). ‘96% Drop in EU Nurses Registering to Work in Britain since Brexit Vote’, The Guardian, 12 June 2017; ‘Fear of Brexit Brain Drain as EU Nationals Leave British Universities’, The Guardian, 3 June 2017. For a very recent example see I newspaper, ‘We Are Leaving: Brexit Has Brought Racism Into the Open’, I newspaper, 27 March 2019, p. 9. It was also reported there that in the year to the end of June 2018, 145,000 EU nationals had left Britain, an 18 per cent increase on the previous year. There were exceptions: Mr Sadiq Khan, the Major of London, one day after the referendum tweeted: ‘My message to the Europeans living in London – you are welcome here #LondonIsOpen’. The overall change in the political and social environment resulted in changes in EU citizens’ cognitive view of the world, thereby altering their identities. Verena K. Brändle, Charlotte Galpin, and Hans-Jörg Trenz, ‘Brexit Bereavement – European Identity As a Case of Anti-populist Counter-mobilisation’, paper submitted for the conference on Brexit, Copenhagen 2017 (typescript with the author).

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. 



While the EU Treaties and the entanglement of EU citizenship with state nationality did not permit the continuation of EU citizenship rights following the UK’s withdrawal from the European Union, international human rights law gave credence to the argument that the loss of EU citizenship could be seen to be a breach of human rights in so far as individuals were forced to abandon an essential part of their social identity and to accept adverse effects in their professional and private lives. The ECtHR’s judgement in Kuric v. Slovenia certainly lends strong support to this argument.16 In written evidence to the Lords EU Justice Sub-Committee in November 2017, Caoilfhionn Gallagher QC and Susie Alegre of Doughty Street Chambers argued that Article 8 of the European Convention on Human Rights, that is the right to respect for private and family life, would be triggered by the loss of EU citizenship on the part of UK citizens. What was not argued at that time, however, was that the process of ‘othering’ of EU citizens in the UK was also affecting their fundamental rights under Article 8 ECHR, Article 12 UDHR and the EU Charter of Fundamental Rights Art.icle 1 on human dignity and Article 7 on respect for private and family life. In this chapter, I wish to trace the process of ‘othering’ of EU citizens in the UK and to unravel the key moments, forces, and strategies that made it possible. I should mention at the outset that it is not my intention, here, to provide an account of the negotiations between the UK and the EU and to examine the provisions of the Withdrawal Agreement, the ratification status of which continues to remain uncertain at the time of writing. In tracing the process of ‘othering’ of EU citizens living in the UK, I adopt a discoursive theoretical approach and argue that the quest for EU citizens’ rights in the UK under Brexit, just like the quest for migrants’ rights, is a quest as much for the realisation of the fundamental status of Union citizenship as for the effectiveness of human dignity. My institutional recommendations drawn from the ‘othering’ of EU citizens in the UK, as far as EU citizenship is concerned, are thus twofold. First, I would suggest the incorporation of Article 1 of the EUCFR on the

16

Judgement of the Grand Chamber of the European Court of Human Rights on 26 June 2012. The Grand chamber found that the erasure of non-Slovene citizens from the registry of the Slovenian Government following its independence in 1991 had not been carried out in accordance with the law and had a serious impact upon the private life of the applicants. The legal vacuum in the independence legislation which had deprived the applicants of their legal status was an unjustified interference with private life.

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

      : 

protection of human dignity within Part Two TFEU, that is, within the Union citizenship provisions. Such an amendment would not only give more substance to Union citizenship and would need no connecting factor with EU law for its applicability, but it would also link Part II TFEU with Article 2 TEU which includes respect for human dignity as a foundational value of the European Union. Secondly, I would suggest the incorporation of Article 7 of the EUCFR within the ambit of EU citizenship in order to protect individuals and their familial relations. The right to respect for private and family life is a universal human right and fundamental for the exercise of EU citizenship rights by all within a Union which aims ‘to promote peace, the values and the well-being of its peoples’.17 I conclude the discussion in Section 14.3 with some related reflections on the Migrant Manifesto articulated by Tania Bruguera, a Cuban activist and artist, and other collaborators in 2011, which has been part of the Immigrant Movement International.18

14.2 Constructing EU Citizens’ ‘Otherness’: From the Progressive Framing of the European ‘Other’ to Externally Imposed Alienation 14.2.1

The Politicisation of EU Mobility in the United Kingdom

EU internal mobility is not, and has not been, a mere functional prerequisite of the internal market. Since the early stages of European integration, it was explicitly linked with the broader normative vision of establishing a ‘European economic and social community’ and ‘European citizenship’ (a notion explicitly mentioned by Lionello Levi Sandri, the Vice-President of the Commission in 1961).19 The Treaty on European Union (in force on 1 November 1993) made European Union citizenship a reality. Building on that, the Court of Justice of the EU has proactively sought to shelter the various aspects of citizens’ lives from discrimination on the grounds of nationality and to promote their integration into the fabric of the host society. It has done so by upholding family reunification rights, granting mobile EU citizens the same tax and social advantages that nationals of the host Member States enjoy, and 17 18

19

Art. 3(1) TEU. J. Lack (ed.), ‘M 99 Tania Bruguera and Immigrant Movement International’, in Why Are We ‘Artists’? 100 World Art Manifestos (St Ives: Penguin Random House, 2017), M99. The Free Movement of Workers in the Countries of the European Economic Community, Bull. EC 6/61, 5–10, p. 6.

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.   ’ ‘’



protecting them from differential conditions of employment and from dismissal. Both secondary legislation and the case law have also ensured that their children and their spouses had access to educational opportunities, housing, and trade union participation. In other words, free movement and residence EU rules have sought to shelter EU citizens’ lives from the disadvantages that accompanied, and continue to accompany, ‘alienage’. The Member States have had to accept the onward movement towards the opening of their societal and political membership circles and the obligation to refrain from discriminating directly or indirectly on the grounds of nationality against EU nationals and from positing unnecessary restrictions and unjustified burdens upon citizens’ activities. This has not been an easy process: nationalism has always drawn internal differences in response to contact with the ‘other’ in order to demarcate the boundaries of communities and to construct narratives about nationhood and belonging. Pre-political or cultural definitions of the nation place non-nationals outside the boundaries of the national community and make a number of requirements for their (qualified) admission.20 In the UK, the Conservative Party has had a history of adopting populist nationalistic narratives in order to construct various migrant communities as alien to the British way of life and to demand their assimilation, thereby gaining electoral advantage.21 But EU law simply outlawed such primordialist and cultural conceptualisations of nationalism. After five years of continuous residence in the host Member State, EU citizens become permanent citizens entitled to enjoy complete equality of treatment. During the crucial phase between three months (their residence is unqualified during the first three months) and five years of residence, their presence becomes a theatre of conflict for a number of claims, such as the States’ right to maintain the integrity of their welfare systems and to shelter them from the claims of ‘outsider insiders’, on the one hand, and claims to equal treatment that EU citizenship law and policy has generated that have exceeded the liberalising trend of the free market ideology, on the other. It is in this domain that we often witness a 20

21

D. Kostakopoulou, The Future Governance of Citizenship (Cambridge: Cambridge University Press, 2008); D. Kostakopoulou, Citizenship, Identity and Immigration in the EU: Between Past and Future (Manchester: Manchester University Pres, 2001). Philip Lynch’s book includes a wonderful explication of Enoch Powell’s populist nationalism and the evolution of Euroscepticism within the Conservative Party. P. Lynch, The Politics of Nationhood: Sovereignty, Britishness and Conservative Politics (Houndmills, Basingstoke: Macmillan Press, 1999).

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

      : 

resistance of the UK and of other Member States to recognise them as cocitizens and holders of a right to equal treatment. Work-seekers are thus often seen as ‘burdens’,22 as opposed to not yet fully active economic actors, and the economically weak parents of children born in the country and attending schools there may be ordered to leave by State authorities. In this war of narratives and competing claims, the EU citizenship right of free movement becomes reduced to a private impulse, a self-assertion colliding with the welfarist and national collectivist principles underpinning the host Member States. EU citizens’ legal positions were undermined in the main by two political parties, namely, UKIP and the Conservative Party. Both targeted them and their targeting coincided with the Labour Party’s loss of power in 2010. Their ‘othering’ was progressively implemented by attempting a break with the established legal tradition of compliance with EU law rules during a decade23 and the progressive construction of disentitlement. A process sequence of it allows us to discern three phases; namely, (a) discourses about ‘foreign’ European criminality which became visible in the public arena since 2007/2008 and were then realised in the law and policy on deportation, (b) the ‘welfare tourism’ concern and the politicisation of intra-EU movement24 which dismantled the culture of EU law based rights and culminated in a vote to leave the EU in the 2016 referendum, and (c) the exclusionary impulse of the blending of populist anti-Europeanism with anti-migrant nationalism following the referendum on UK’s EU membership on 23 June 2016. In the subsequent discussion I examine these three phases.

14.2.2 Politicisation and Institutional Sedimentation of the EU ‘Other’ Although the Member States have used the public policy, public security, and public health exceptions of the Treaty, as implemented by secondary legislation, now Directive 2004/38, to restrict free movement and to exclude EU nationals from entry and residence, the global economic crisis in 2008 provided a fertile ground for the dissemination of populist 22 23

24

See Chapter 16 by Carter. D. Kostakopoulou, ‘What Fractures Political Unions? Failed Federations, Brexit and the Importance of Political Commitment’ (2017) 42(3) European Law Review, 339–352. The Conservative-led government attempted to recapture Conservative voters who had fled to UKIP.

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.   ’ ‘’



discourses in both the Netherlands and the UK, about the undesirability of the continued presence of ‘foreign criminals’ and EU citizens who had ‘abused the hospitality and showed disrespect for the values’ of the host community. This, in turn, led mainstream Conservative politicians to reconsider what public security might mean in the context of EU law and thus to limit the level of protection that could be provided to long term resident EU citizens who committed criminal offences. The wider political environment of domestic unease due to austerity and the migrationrestriction targets of the Conservative electoral manifesto underpinned the eagerness of the UK’s Home Office to expel EU citizens for minor offences which could not be legitimately included within the scope of the public policy exception and justified by the Bouchereau test developed by the Court of Justice of the EU.25 Concerns about the ‘foreign criminality’ of EU citizens were entangled with sustained negative depictions of EU citizens as welfare tourists and thus burdens on the UK’s welfare system in 2012/2013. When this intertwining happened, intra-EU mobility became clearly politicised and disentitlement ensued. Of course, limiting ‘welfare tourism’ had been featuring on the agendas of certain national governments for several years and the presence of protective legislation and case law did not always mean that EU rules are complied with in practice. While all this is true, one must also acknowledge the UK Conservative-led government’s propensity to question settled rules and to advance national protectionist arguments in order to exclude EU citizens or to limit their access to their legal entitlements. It is true that a ‘right to reside test’ as part of the assessment of habitual residence, called the ‘Habitual Residence Test’, was implemented in 2004 requiring mobile EU citizens to submit compelling evidence that they met the criteria of being a qualified person. In March 2014, the UK removed the right of mobile EU citizens to access housing benefit and required a minimum earnings threshold in order to qualify as a ‘worker’ under the Citizens Directive. At the same time, the UK Home Office started using begging and rough sleeping as justifications for the deportation of EU citizens and Roma EU citizens were systematically targeted. Such policies and practices were often justified on the basis of the alleged need to tame the discursive power of populist nationalist parties 25

Case C-30/77, R v. Bouchereau ECLI:EU:C:1977:172. For a detailed analysis, see D. Kostakopoulou, ‘Co-creating European Union Citizenship: Institutional Process and Crescive Norms’, (2013) 15 Cambridge Yearbook of European Legal Studies, 255–282.

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

      : 

and groups which were politicisers of all issues that could arouse antimigrant sentiment in a difficult economic climate. The media also picked up those negative messages about EU migration and intensified them following 2012 when transitional labour market restrictions were being lifted for Romanian and Bulgarian workers.26 Romanians, in particular, were not represented fairly. They were associated with criminality and economic poverty in the media27 and were depicted as ‘socio-political and cultural “problems”’.28 Mr David Cameron, the British Prime Minister, who had promised a referendum on the UK’s continued membership of the EU in 2013, thereby succumbing to pressures from the Eurosceptic wing of the Conservative Party, proceeded with its realisation following his re-election in 2015 and the ‘renegotiation of the UK’s relationship with the EU’. By 2015, EU citizens as a whole had been officially redefined as migrants and in certain right-wing newspapers as immigrants. The potential destabilisation of their personal lives and the erosion of the culture of European Union law rights were under way. The discursive construction of EU citizens as welfare burdens was prevalent in Mr Cameron’s ‘demands’, such as an ‘emergency break’ on intra-EU mobility and the imposition of more controls on EU citizens. Under the shadow of a possible Brexit, the Court of Justice did not hesitate to adopt a stricter interpretation of the Citizenship Directive.29 In Dano general exclusions from social benefits for economically inactive mobile EU citizens in Germany were deemed to be lawful while on 15 September 2015 the Grand Chamber ruled that Germany lawfully denied certain social assistance benefits to four Swedish nationals, Ms Alimanovic and her three children, who were born in Germany, who had only temporary employment for less than a year and were not looking for employment.30 The climate within which the European judiciary 26

27

28

29 30

Alex Balch and Ekaterina Balabanova, ‘Ethics, Politics and Migration: Public Debates on the Free Movement of Romanians and Bulgarians in the UK, 2006–2013’ (2016) 36(1) Politics, 19–35. Dora Vicol and William Allen, Bulgarians and Romanians in the British National Press: 1 Dec 2012–1 Dec 2013 (Migration Observatory report, Oxford, COMPAS, University of Oxford, 2014), available at www.migrationobservatory.ox.ac.uk/wp-content/uploads/ 2016/04/Report-Bulgarians_Romanians_Press_0.pdf, last accessed 15 August 2019. Bulgaria and Romania joined the EU in 2007 following the 2004 EU enlargement which included the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia. See Chapter 15 by Carter and Jesse. Case C-333/13, Dano ECLI:EU:C:2014:2358; Case C-67/14, Alimanovic ECLI:EU: C:2015:597. For a detailed analysis, see Herwig Verschueren, ‘Preventing “Benefit

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.   ’ ‘’



operated at that time necessitated the signal that the EU mobility regime does not condone ‘benefit tourism’. On 25 February 2016, the Court of Justice reinforced this message by ruling that an economically inactive citizen can be automatically excluded from entitlement to social assistance during the first three months of residence in the host Member State.31 Unlike its previous case law, the Court’s formalist reasoning in Dano, Alimanovic, and Garcia-Nieto indicated that the new economic and political landscape propelled both judicial restraint and the imposition of limitations in the scope of transnational financial solidarity.32 Regardless of such concessions on the part of the Court of Justice and the other European institutions which accommodated many of Mr Cameron’s demands, the EU referendum campaign was dominated by UKIP’s anti-European and anti-migrant messages as well as misinformation and propaganda. On 23 June 2016, 51 per cent of the people voted in favour of leaving the EU, which the Conservative Party quickly interpreted as a mandate to end the free movement of labour by exiting the single market and limiting the rights of resident EU citizens and their families. At that moment, EU citizens had officially become ‘foreigners’. Possessing the nationality of another Member State became a good enough justification for discrimination, mistreatment, hostility in workplaces, towns, cities, and neighbourhoods, and for their portrayal as ‘burdens’ and deportable ‘outsiders’. The price of the new political and social environment was twofold, namely, growing hostility towards EU citizens and their EU law-derived rights and deep societal divisions. Disunity in society and the erosion of the EU citizenship status made EU citizens experience their everyday lives as a battlefield: at any point in time one could be confronted with abuse and/or rising hostility.33 They avoided reading non-British newspapers on their mobile or talking in their home language on the tube, many were stopped by strangers in the streets and told to ‘go home’ and that they ‘do not belong here’ while others were suspended from work on false and malicious allegations designed to destroy their reputation and

31 32

33

Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52(2) Common Market Law Review, 363–390. Case C-299/14, Garcia-Nieto ECLI:EU:C:2016:114. Daniel Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52(1) Common Market Law Review, 17–50. An interesting read was Max Hastings, ‘Our Rudeness to European Allies is Shameful’, The Times, 31 October 2018.

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

      : 

careers. Blogs and reports in the media provided a panorama of the disruptions of the integral space of human relationships and democratic life which led many to leave the UK. Social relations could not withstand the strain; they became fractured as bigotry was raising its ugly face. At the same time, anti-migrant sentiments were associated with a newfound freedom on the part of the indigenous population; the freedom to ‘say or to do what they wanted’ without restraint and without being accountable. Those EU citizens who resolved to live on had to face an increasingly hostile anti-EU-migration public discourse and public attitudes which often made it difficult for them to cope with the demands of ordinary life at work and at home. The Government’s unwillingness to confirm the security of their status for a lengthy period of time coupled with the anti-EU tone of politics transformed the numbered EU citizens into a precariat and undoubtedly reduced their sense of wellbeing in everyday life. ‘Otherness’ was painful; the numbered EU citizens had to confront every day experiences taking place under an externally imposed reality which was not only very different from the numbered’s own realities, and as such difficult to cope with, but also questioning their selfunderstanding of their past lives and realities to the extent of making them look illusionary and, thus, unreal. As the anti-migration and antiEU rhetoric intensified and the irrational mood of taking back control from imagined enemies was spreading, it was getting increasingly difficult for EU citizens to negotiate a safe space away from the national ‘collective hallucination’ on the one hand, and the emotions generated from the depreciation of their identity and their contributions to society and economy and their wounded dignity, on the other. In the eyes of the nativist majority and, in accordance, with the reductionist and disassociative understanding of political community characterising populist nationalism, they were simply the numbered ‘others’. Nothing else.34

34

Ortega ye Gasset has correctly observed in connection with ‘extremism as a way of life’ that ‘. . . Here is the formal and inevitable sense in which desperation becomes extremism. Extremism is that way of life in which one tries to live only on one extreme of the vital area, with a subject, in a dimension or with a theme that is purely peripheral’. He continued on page 152 by arguing that ‘all extremism inevitably fails because it consists in excluding, in denying all but a single point of the entire vital reality. But the rest of it, not ceasing to be real merely because we deny it, always comes back and back and imposes itself on us whether we like it or not’. José Ortega y Gasset, Man and Crisis (London: George Allen and Unwin, 1957), chapter 9, p. 45.

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.   &    



Having discussed the political and media discourses on ‘othered’ EU citizens, the populist nationalist rhetoric and the ‘forcible ethnicisation’ of the population in the UK, however, one cannot but wonder how a progressive political narrative could be articulated in such a way that makes a powerful case for valuing and respecting human beings instead of perceiving them as ‘others’, that is, enemies or welfare tourists or unreasonable burdens. This is the main focus of the subsequent section.

14.3

Human Dignity and the Migrant Manifesto of 2011

Throughout history, as both a membership category and a formal institution, citizenship has been raced, ethnicised, as well as gendered. Unlike citizenship, however, human dignity has no race, gender, ethnic identity, or nationality. Otherwise put, human dignity knows no ‘otherness’. In this respect, Article 1 of the EU Charter of Fundamental Rights which states that ‘Human dignity is inviolable. It must be respected and protected’ applies to everyone in the EU without distinction, subject, of course, to the jurisdictional delimitation of Article 51 EUCFR, as interpreted by the CJEU.35 The unacceptable treatment of EU citizens resident in the UK during, and following, the referendum of 23 June 2016 makes it imperative for European Union institutions to insert Article 1 EUCFR in Part II TFEU thereby signalling that respecting the dignity of Union citizens qua human beings is an unconditional requirement in the EU. EU citizens are moral equals and should not be treated disrespectfully. Nor should they be demoted to rightless persons and object of the arbitrary choices made by state elites or a (slim) political majority. Such a Treaty amendment could be procured during the next IGC which would revise the Treaties in conjunction with a simultaneous decision to incorporate the right to respect for private and family life (Article 7 EUCFR) within the ambit of EU citizenship provisions. A European Union based on the rule of law and constitutional values cannot allow its citizens and their family members to be subject to xenophobia, racism, abuse, disrespect, contempt, and hatred, in short, to all those unacceptable manifestations of ‘othering’ which took place in the UK under Brexit. EU citizenship has evolved beyond free movement and thus it is not enough for individuals in the EU to proclaim: ‘I move and thus I am

35

Case C-617/10, Aklagaren v. Hans Akerberg Fransson ECLI:EU:C:2013:105. See also Case C-619/18, Commission v. Poland ECLI:EU:C:2019:531.

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

      : 

an EU citizen’. EU citizens should be able to say: ‘I am an EU citizen and must be treated with respect, dignity and in a non-discriminatory way’.36 It is worth mentioning here that human dignity has inspired the work of Tania Bruguera, a Cuban artist and activist. Bruguera has sought to bring migrants’ rights within the scope and ambit of human dignity by launching the Immigrant Movement International in New York in 2005. As an international NGO, the movement organises events and campaigns, provides legal advice, and hosts workshops and conventions. During a convention in November 2011, the ‘Migrant Manifesto’ was drawn.37 It is a short document consisting of 10 articles and makes a powerful case for human empathy, international connectivity, fundamental rights, and respect for human dignity. Accordingly, the manifesto strongly counsels against the downgrading, or limiting the visibility, of the contributions of migrants to societies, economies, and polities, and the prevalence of moral double standards, hypocrisy, and racism at the expense of people’s humanity. Due to space limitations, I would like to cite here four articles of the Manifesto which capture nicely counter-‘othering’ objectives and practices and are apposite to the predicament of EU citizens living in a country (the UK) which they previously called ‘home’, as follows: 1. We know that international connectivity is the reality that migrants have helped create, it is the place where we all reside. We understand that the quality of life of a person in a country is contingent on migrants’ work. We identify as part of the engine of change. 2. We are all tied to more than one country. The multilaterally shaped phenomenon of migration cannot be solved unilaterally, or else it generates a vulnerable reality for migrants. Implementing universal rights is essential. The right to be included belongs to everyone. 3. We have the right to move and the right to not be forced to move. We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves whenever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life 36

37

Compare Case C-168/91, Konstantinidis ECLI:EU:C:1993:115 and in particular para 46 of A. G. Jacobs’s Opinion delivered on 9 December 1992 which stated that EU nationals are entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of their fundamental rights. Manifesto can be downloaded here: www.taniabruguera.com/cms///////682-0-Inter national+Migrant+Manifesto.htm, last accessed 19 June 2020; see also Lack (ed.), ‘M 99 Tania Bruguera and Immigrant Movement International’.

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.   &    



... 10. We witness how fear creates boundaries, how boundaries create hate and how hate only serves the oppressors. We understand that migrants and non-migrants are interconnected. When the rights of migrants are denied, the rights of citizens are at risk. The above provisions place the migrant condition within the ensemble of ordinary human experiences and thus (de)construct it as the human condition or to be more precise as what being human and behaving decently mean. Policies, practices, and laws exist for human beings and should be designed and appraised on the basis of their functionality to advance human beings’ rights and the quality of their associated life. In fact, the ultimate yardstick for assessing any institution or policy or ideology is the effect produced on the conduct of the people who live under them and, in this respect, the Brexit project attracts only negative scores. It has brought to the surface the most undesirable human passions, prejudice, and resentment on the part of the majority and the governing elites and I am not quite sure whether ‘the numbered’ ‘others’, that is, resident EU citizens, will ever forget the trauma of their externally imposed alienation. A generalised sentiment reported in the press again and again is that even if all matters concerning their ‘settled status’ are settled, something has profoundly shifted in their relationship with the country they called ‘home’.

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15 The ‘Market Insider’ Market-Citizenship and Economic Exclusion in the EU

    

15.1

Introduction

This chapter focuses on one of the economic elements of ‘othering’ of EU citizens in EU law.1 It describes the ‘othering’ of economically inactive and/or less affluent EU citizens in light of a series of judgments of the Court of Justice of the European Union (hereafter, ‘the Court’ or ‘the CJEU’), which potentially excludes them from the very scope of application of EU law. This is in contrast to the inclusion of economically active citizens of the Union, namely workers and selfemployed citizens.2 The chapter will first explain this development and its underlying causes. It will demonstrate that the privileges available for economically active EU citizens have never disappeared, and that the Dano case and its follow-ups are part of a coherent development of the law based on the adoption of Directive 2004/38. Before reflecting on the logic of market citizenship and ‘othering’, the chapter will concentrate on some of the inevitable effects of the economic ‘othering’ of EU citizens within the EU, such as the fata morgana of legal certainty that has been created by the Court, the weakening of residence security, and the potential disruption of family life when returning to a home Member State.

1

2

The chapter is partially based on D. Carter and M. Jesse, ‘The “Dano Evolution”: Assessing Legal Integration and Access to Social Benefits for EU Citizens’ (2018) 3(3) European Papers, 1179–1208. The next chapter, Chapter 16 by Carter, focusses on the exclusion of the low wage workers in the EU.



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15.2



The Dano-Trinity and the Parousia of Market Citizenship

After the much-discussed line of cases allegedly initiated by the Dano and Alimanovic judgments,3 which elsewhere has been referred to as the Dano-Quartet,4 criticism arose that the Court had abandoned its earlier case law which, at least partially, overcame the limitations of market citizenship.5 Instead, the Court restored the traditionally privileged status for economically active EU citizens, such as workers and self-employed persons, and the diminished status of economically inactive people moving throughout the EU. In doing so, the Court is suggested to be ‘punishing’ the poor,6 actively limiting the free movement rights of economically weak persons,7 and has contributed to the marginalisation of precarious workers.8 In short, the Court has actively allowed the denial of protection for citizens of the Union at the very moment they need it most and when they are the most vulnerable.9 As such, the Court is accused of forcing a ‘second coming’ of ‘market citizen’. Notwithstanding 3

4

5

6

7

8 9

Case C-333/13, Dano ECLI:EU:C:2014:2358; Case C‑67/14, Alimanovic ECLI:EU: C:2015:597; Case C‑299/14, García Nieto ECLI:EU:C:2016:114. This quartet includes the Cases C-140/12, Brey ECLI:EU:C:2013:565; C-333/13, Dano ECLI:EU:C:2014:2358; C‑67/14, Alimanovic ECLI:EU:C:2015:597; and C‑299/14, García Nieto ECLI:EU:C:2016:114; see also M. Jesse and D. Carter, ‘Life after the “Dano-Trilogy”: Legal Certainty, Choices and Limitations in EU Citizenship Case Law’, in D. Kochenov, N. Cambien, and E. Muir (eds.), Citizenship of the Union (Leiden: Brill/Nijhoff, 2020). See, for example, N. Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52(4) Common Market Law Review, 889–938; C. O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v. United Kingdom’ (2017) 54(1) Common Market Law Review, 209–243; E. Spaventa, ‘Earned Citizenship – Understanding Union Citizenship through its Scope’, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), pp. 204–225. On market citizenship, see N. Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47(6) Common Market Law Review, 1597–1628. H. Verschueren, ‘Preventing “Benefit Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52(2) Common Market Law Review, 388. See C. O’Brien, ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53(4) Common Market Law Review, 937–978. See Chapter 16 by Carter. D. Kochenov, ‘The Citizenship of Personal Circumstances in Europe’, in D. Thym (ed.), Questioning EU Citizenship: Judges and Limits of Free Movement and Solidarity in the EU (Oxford: Hart Publishing, 2017), pp. 37–38; similar conclusions speaking of a ‘narrow type of solidarity’ only available for those who do not need it after the judgments are reached. P. Minderhout and S. Mantu, ‘Back to the Roots? No Access to Social Assistance for Union Citizens Who Are Economically Inactive’, in D. Thym (ed.), Questioning EU Citizenship: Judges and Limits of Free Movement and Solidarity in the EU (Oxford: Hart Publishing, 2017), p. 207.

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

 ‘ ’

the merits of such claims, the idea that anything has changed in this regard is problematic. This is because there are strong arguments that ‘market citizenship,’ and its effects, was not brought back by the Court in Dano or Alimanovic simply because it had never disappeared in the first place.10

15.2.1

Market Citizenship in Sala, Baumbast, Grzelczyk, and Bidar

Even judgments rendered by the Court in the period after the introduction of EU citizenship and EU citizenship rights in the Treaties in 1992, such as Martinez Sala and Baumbast, but also Grzelczyk and Bidar,11 which are usually referred to as decisions in which the Court overcame the limits of market citizenship, all emphasised the possibility of Member States to restrict equal treatment with regard to accessing social benefits for economically inactive individuals. It is true, however, that this possibility was based on complicated and vague legal formulas, which were biased in favour of applicants and difficult to apply in a legally certain manner for Member State administrations.12 However, questions over the Court’s reasoning and general approach should not detract from the fact that Member States could in principle deny equal treatment with regard to accessing benefits for economically inactive groups of EU citizens to protect their public finances.13 In short, the dichotomy of economically active and inactive EU citizens still remained, even in cases where such a dichotomy had allegedly been overcome.

15.2.2 Market Citizenship in Directive 2004/38: The Omnipotence of Article 7 Directive 2004/38 was adopted in 2004, and brought together much previous legislation and case-law of the Court.14 Article 7 is arguably

10

11

12 13

14

See Carter and Jesse, ‘The “Dano Evolution”’; see also Nic Shuibhne, ‘The Resilience of EU Market Citizenship’, p. 1597. Cases C-85/96, María Martínez Sala ECLI:EU:C:1998:217; C-413/99, Baumbast ECLI: EU:C:2002:493; C-184/99, Grzelczyk ECLI:EU:C:2001:458; C-209/03, Bidar ECLI:EU: C:2005:169. Carter and Jesse, ‘The “Dano Evolution”’. See, for example, Case C-413/99 Baumbast ECLI:EU:C:2002:493, paras. 90–92; Case C456/02, Trojani ECLI:EU:C:2004:488, para. 33. As stated in the Directive, it amends Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community and repeals Directives 64/221/EEC, 68/

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.  -   



the most important provision contained within the Directive, as it determines the rights of all EU citizens residing in a host Member State for a period of between 3 months and 5 years, and clearly and explicitly restates the differentiation between economically active and inactive citizens. Article 7(1)(a) stipulates that ‘workers or self-employed persons’ shall have the right to reside for a period longer than three months. Under the same paragraph at (b) it is stated that those who are not covered by (a) are required to have ‘sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State’. Under paragraph (c) students have to demonstrate that they have sufficient resources not to become a burden on the social assistance system ‘by means of a declaration’. It should also be emphasised that the nature of Article 7 of the Directive, and the differentiation between economically active and inactive individuals, is not ruled out by primary EU law. Article 18 TFEU only prohibits the discrimination on grounds of EU nationality15 ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein, . . .’, while Articles 20 and 21 TFEU stipulate that ‘rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’ and are ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect,’ respectively. It is therefore uncontroversial that the Court would adjust its approach quickly in the light of the ‘new-old’ reality under Directive 2004/38. The first turning point for the Court occurred in 2007 with the Förster judgement.16 In that case, the Court permitted a Dutch rule allowing a German student to access a study-finance scheme only if, as a nonworker, she could prove a ‘sufficient degree of integration’, a condition known from the Bidar case,17 by demonstrating that she had 5 years of legal residence in the Netherlands. The Court considered Articles 7 and 16(1) of Directive 2004/38, in part because the Netherlands already had implemented the Directive. This indicated a shift towards a closed interpretation of EU citizenship rights based exclusively on Directive

15

16 17

360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC, and 93/96/EEC. See Joined Cases C‑22/08 and C‑23/08, Vatsouras and Koupatantze v. ARGE ECLI:EU: C:2009:344. Case C-158/07, Jacqueline Förster ECLI:EU:C:2008:630. Case C-209/03, Bidar ECLI:EU:C:2005:169.

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

 ‘ ’

2004/38, and particularly Article 7 therein. The Court continued this approach of defining rights of EU citizens exclusively with reference to Directive 2004/38 in Ziolkowski and Szeja, which concerned permanent residence status,18 in Metock, which concerned family (re-)unification with third-country national family members,19 and in O & B, which concerned the return to a home Member State of EU citizens.20 In essence, these judgments clarified that equal treatment and residence rights under the Directive was available only to EU citizens that were legally resident under the Directive.

15.2.3 The Dano-Evolution21 The Dano and Alimanovic decisions, as well as subsequent cases, confirm that residence under Directive 2004/38 is the starting point. The decisions confirm that rights under the Directive, in particular the right to equal treatment under Article 24, are only available if the citizen’s residence is lawful under the Directive itself, namely under Articles 6, 7, or 16(1) therein. As such, the Directive has become the principal frame of reference for the Court, with little to no ‘second-guessing’ of either the conditions contained in the Directive or Member State rules that correctly transpose it in the light of EU primary law. After the decisions of Förster and Ziolkowski, the decisions of the Court in Dano, Alimanovic, and subsequent cases became inevitable.22 The Court engaged in logical and coherent legal interpretation of the rules in force, and evolved its case law rather than starting a revolution to the detriment of applicants in Dano.23 In fact, in some cases the legally certain approach of relying on the exact wording of the Directive is advantageous to some applicants, as cases like Metock,24 Coman,25 and Diallo26 demonstrate.

18

19 20 21 22 23 24 25 26

Joined cases C‑424/10 and C‑425/10, Ziółkowski & Szeja ECLI:EU:C:2011:866. See further M. Jesse, ‘Joined Cases C-424/10, Tomasz Ziółkowski v. Land Berlin, and C-425/10, Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja v. Land Berlin’ (2012) 49(6) Common Market Law Review, 2003–2017. Case C-127/08, Metock and Others ECLI:EU:C:2008:449. Case C-456/12, O & B ECLI:EU:C:2014:135. Term taken from Carter and Jesse, ‘The “Dano Evolution”’. Ibid. Ibid. Case C-127/08, Metock and Others ECLI:EU:C:2008:449. Case C-673/16, Coman ECLI:EU:C:2018:385. Case C-246/17, Diallo ECLI:EU:C:2018:499.

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.  -   



Notwithstanding the coherence of the Court’s approach, the immediate effect of this dichotomy is that individuals with an ‘economic value’ therefore obtain a privileged legal status and rights within the EU legal order, whilst the same protection is denied to individuals who are considered to have limited or no economic value. This distinction and varying layers of rights has consequences: commentators are right when they see an exclusion of less affluent individuals from EU free movement rights, at least to a certain degree.27 For the first time, the Court has created a class of EU citizens that are ‘illegal’ or ‘irregular’ immigrants.28 This class of persons is poor, and without the right to residence and equal treatment to protect them they are liable to suffer from a high risk of exploitation and social exclusion.29 This class of persons has been described as the European ‘Lumpenproletariat’:30 their exclusion of EU citizens is a form of ‘othering’, based along economic lines, and backed up by the letter of the law. That being said, the Court of Justice is not the main culprit of this albeit justified criticism. It merely interpreted Directive 2004/38 in its case-law using a literal reading of the Directive, in a logical and coherent way. In fact, the Court is merely following its traditional approach to legal reasoning, based on the ‘classic’ textual, contextual, and purposive approach applied by national courts.31 Under this approach, assuming the ordinary meaning of the legal text is clear, there is no need to embark on a contextual or teleological interpretation of the law in question.32 It seems unreasonable to criticise it for having simply followed the express will of the EU legislator, i.e. EU Parliament and Council, which has decided to keep the traditional differentiation of EU citizens as a guiding principle in the secondary legislation itself.

27 28

29

30 31

32

See, for example, O’Brien, ‘Civis Capitalist Sum’, pp. 961–966. D. Thym, ‘When Union Citizens Turn into Illegal Migrants: The Dano Case’ (2015) 40(2) European Law Review, pp. 257–258. See also D. Schiek, ‘Perspectives on Social Citizenship in the EU: From Status Positivus to Status Socialis Activus via Two Forms of Transnational Solidarity’, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), p. 368; see also O’Brien, ‘Civis Capitalist Sum’, pp. 964–965. Schiek, ‘Perspectives on Social Citizenship in the EU’, p. 360. G. Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford: Hart Publishing, 2013), p. 281. K. Lenaerts and J. A. Gutiérrez-Fons, To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice (EUI AEL Working Papers, 2013/9), pp. 6–7.

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15.3 ‘Fata Morgana’ of Legal Certainty? The Concept of ‘Sufficient Resources’ and ‘Unreasonable Burdens’ Having explained the development of the law in relation to residence and equal treatment rights under the Directive, this section will examine the specific mechanisms that give rise to the exclusion of EU citizens among economic lines, and how this contributes towards the mechanisms of ‘othering’ in various aspects of daily life. Improved clarity and legal certainty were the main advantages of the Court’s interpretation of citizenship rights based almost exclusively on the precise wording of Directive 2004/38. However, the elevated status of the Directive and Article 7 therein has unfortunately not been accompanied by any less ambiguous definitions of its key terms. As far as economically inactive individuals are concerned, under Article 7(b) of Directive 2004/38, the condition to have ‘sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State’ stands central to their claim to legal residence and, by extension, equal treatment under Article 24. Unfortunately, given the lack of any clear indication as to what is ‘sufficient’, what is an ‘unreasonable’ burden, or the consequence of becoming one, a strict and literal interpretation of the Directive may prove difficult in practice. The Directive, codifying previous case-law, prohibits Member States from determining a fixed minimum amount, and obliges them to always take the personal situation of the applicant into account when assessing the financial situation of applicants.33 As Article 8 stipulates: ‘In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.’ As such, rather than permitting the setting of formal thresholds based on national legislation, the Directive only sets a minimum requirement that the Member States cannot go below when making their individual assessments. The Court has repeatedly made clear that the origin of the resources in question, and even their legal status, is not relevant in the determination of whether and to what extent resources are available. Recently, in Barjatari, the Court held that a minor EU citizen had sufficient resources 33

See, for example, C-184/99 Grzelczyk ECLI:EU:C:2001:458, paras. 43–44; Case C-140/12, Brey ECLI:EU:C:2013:565, paras. 66–67.

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. ‘ ’   ?

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under the Directive, even though such resources were derived from the EU citizen’s father’s employment, which was undertaken without a work or residence permit.34 The Court repeated its previous assertion that the Directive makes no condition as to the origin of the resources, and consequently Member States must refrain from adding extra conditions in their national legislation.35 This can again be seen as a literal interpretation of the Directive, similarly to cases such as Metock or Coman. However, this literal interpretation is of limited value in cases like Bajratari, given that it provides no indication as to what exact amount establishes sufficient resources. This also ensures that the burden of proof is on national authorities, as they have to demonstrate that the individual does not have sufficient resources upon undertaking an individual assessment of the circumstances of the applicant.36 Furthermore, the Court imposes a similar burden upon Member States to demonstrate that the individual represents an unreasonable burden on the host-state.37 Such considerations of the individual were however absent in Dano. This can perhaps be explained by the fact that the referring court had already determined that Ms Dano did not have sufficient resources under the Directive.38 That being said, despite not having sufficient resources, the Court did not consider whether Ms Dano was an unreasonable burden on the host Member State, which if one compares her situation to that of, for example, the applicants in Brey then the unreasonableness may not be so clear-cut.39 In terms of what constitutes an unreasonable burden, in Alimanovic and later in Garcia Nieto, the Court seems to have abandoned the individual assessment entirely. In these cases, the Court found that whilst a single applicant could scarcely be described as an unreasonable burden, ‘(. . .) the accumulation of all the individual claims which would be submitted to it would be bound to do so’ (emphasis added).40 By 34

35 36

37

38 39 40

Case C-93/18, Ermira Bajratari ECLI:EU:C:2019:809, paras. 42–52. Although it should be noted that Mr Bajratari continued to pay income tax and social security contributions on the basis of such employment, despite its non-lawful status. Ibid., paras. 34; Case C-202/13, McCarthy and Others ECLI:EU:C:2014:2450, para. 31. Case C-140/12, Brey ECLI:EU:C:2013:565; see Chapter 8 by Kolbaşı-Muyan on how such alienation ‘occurs’ in practice. Case C-93/18, Ermira Bajratari ECLI:EU:C:2019:809, para. 34; See also Case C‑483/17, Tarola ECLI:EU:C:2019:309, para. 50 Case C-333/13, Dano ECLI:EU:C:2014:2358, para. 44. Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 933. Case C‑67/14, Alimanovic ECLI:EU:C:2015:597, para. 62; Case C‑299/14, García Nieto ECLI:EU:C:2016:114, para. 50.

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 ‘ ’

presuming that the accumulation of various benefit claims would be ‘bound to’ result in an unreasonable burden on the host-state arguably defers unlimited discretions to Member States in making this calculation, without having to make any kind of empirical case as to why this might be true. Ambiguities and discrepancies in regard to the language used in Article 7 also contribute to this lack of clarity. The cases of both Dano and Alimanovic came from proceedings before German courts, meaning that German was the language of the proceedings, which may partly explain the Court’s approach.41 The German version of Article 7(1)(b) 2004/38 does not stipulate that applicants must have sufficient resources in order to not become an unreasonable or excessive burden on the social assistance system of the host Member State, as does the English or other language versions.42 Instead, the German version requires the applicant to have sufficient resources in order not to rely on social benefits at all when residing in a host state.43 The German version thus categorically rules out the reception of social benefits, whereas other language versions focus on the extent of the ‘burden’ put on the Member States. The German criterion is in practice easier to apply by administrators than the looser unreasonable burden tests of Grzelczyk and Brey, even if it offers a lower level of protection to such persons. However, it is still not clear at this point when exactly the condition of sufficient resources is met. This is likely to result in more insecurity for EU citizens, as well as confusion for administrators.

15.4 Undermining Residence Security of EU Citizens 15.4.1

Automatic Illegality after Automatic Means-Test?

According to the Directive, no minimum amount may be set to determine what constitutes insufficient resources, meaning that there has to be an individual assessment to determine whether an individual applicant is 41 42

43

Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 896. For example, both the French and Spanish versions are phrased in the same manner as the English version. The Directive recital refers to ‘une charge déraisonnable’/‘una carga excesiva’, whilst Art. 7 suggests that the individual should have ‘de ressources suffisantes afin de ne pas devenir une charge pour le système d’assistance sociale’/‘de recursos suficientes para no convertirse en una carga para la asistencia social’. German wording of Art. 7(1)(b) Directive 2004/38: ‘(. . .) so dass sie während ihres Aufenthalts keine Sozialhilfeleistungen des Aufnahmemitgliedstaats in Anspruch nehmen müssen’.

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eligible for social benefits under Directive 2004/38. However, according to the decisions of Dano and Alimanovic, only EU citizens legally resident under Directive 2004/38 have a right to equal treatment as regards accessing social assistance benefits. This can result in national authorities assessing every application of EU citizens for such social assistance benefits. This has the potential to result in a vicious circle, which will strip applicants of their residence rights. Because access to welfare benefits is only allowed when the conditions of legal residence are fulfilled, every request for welfare benefits of economically inactive EU Migrants can now potentially lead to a sufficient means test under Article 7 of Directive 2004/38, which in turn might lead to a finding that their residence is not legal under the Directive at all. The irony is that minimum subsistence benefits, such as the one at issue in Dano, are often only available under the very condition that an individual does not have sufficient resources at her/his disposal.44 This paradox means that if applicants fulfil the conditions to obtain minimum subsistence under national law, they most likely fall short of conditions of legal residence under Article 7 of the Directive. The Court, in its attempt to create clarity, has created a potential catch-22 for applicants and national administrations alike. At the same time, there are no signs that the Court has abandoned its earlier case-law, such as Grzelczyk and Brey, where it stated that asking for a benefit must not automatically trigger a denial of residence under the Directive. However, it will be difficult to recognise in practice whether the application for social assistance benefits in the host Member State led to a direct and automatic finding of illegal residence. In Commission v. United Kingdom, the Court remained insensitive to such concerns and held that the UK’s approach of always examining the lawfulness of an individual’s residence status during their application for welfare provision was permitted, and did not consider such a system of checks to be systematic in nature.45 This was despite the ‘abundance of evidence’ that the UK was engaging in systematic checking.46 As a result of this, an innocent application for a social benefit by an economically

44

45 46

Minderhout and Mantu, ‘Back to the Roots?’, p. 199; Verschueren, ‘Preventing “Benefit Tourism” in the EU’, p. 381. Case C-308/14, Commission v. United Kingdom ECLI:EU:C:2016:436. O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain’, p. 229; M. Cousins, ‘The Baseless Fabric of This Vision: EU Citizenship, the Right to Reside and EU Law’ (2016) 23(2) Journal of Social Security Law, 104.

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 ‘ ’

inactive EU citizen might trigger a means test under Article 7 of the Directive, which can then lead to a finding that they fall short of the conditions outlined therein. In such a situation, applicants are not only denied a social benefit, but will find themselves without a right to reside and outside of the scope of application of EU rules altogether. This is liable to have a chilling effect on social assistance claims. In trying to obtain social rights, not only may they see their claim rejected, but they may also be told that they do not have any rights under EU law at all.47 Once it is concluded that an individual does not have sufficient resources and thus cannot rely on Articles 7 or 24 of Directive 2004/38, their position as well as the range of options available to the Member State in question remains unclear. The Directive categorically denies automatic expulsion and forces Member States to show that the burden an EU citizen poses on the state is unreasonable enough to merit expulsion.48 Advocate General Cruz Villalon suggested in his opinion in the case of Commission v. United Kingdom that ‘the procedural safeguards under Article 31 of Directive 2004/38 enable the person concerned to seek an administrative or judicial review of the lawfulness of the authorities’ assessment’.49 This finding, which was not repeated by the Court, would introduce a qualitative unreasonable burden test through the back door in the event of expulsion of EU citizens. In fact, the wording of Article 31(1) is ambiguous. It states that the ‘persons concerned shall have access to (. . .) redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health’. It is not clear whether this provision applies to decisions resulting in a loss of a right to reside under Article 7, rather than the straightforward denial of residence on grounds of public policy, security or health, for which Article 31 applies. However, if Article 31(1) were to apply to all decisions negatively affecting an individual’s residence status, as Advocate General Cruz Villalon suggested, it could potentially lead to situations wherein EU citizens have no right of residence under the Directive but, at the same time, they cannot be expelled back to their home

47

48

49

D. Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52(1) Common Market Law Review, 21. See Preamble 16, and Art. 14 and 26 Directive 2004/38, see also Chapter 9 by Hamenstädt. Opinion of Advocate General Cruz Villalon in Case C-308/14, Commission v. United Kingdom ECLI:EU:C:2015:666, para. 96.

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Member State either. This would again contribute to the class of ‘tolerated citizens’,50 i.e. EU citizens too poor to be eligible for social protection under Articles 7 and 24, whilst being protected from expulsion back to their Member State of origin.

15.4.2 Access to Permanent Residence Residence security is a big marker for the inclusion or exclusion of migrants. The focus on Article 7 of the Directive as the all-decisive provision has arguably made obtaining permanent residence status under Article 16(1) more difficult, which is liable to further increase the ‘othering’ of EU citizens. If Member States may conduct a legal residence test after an application for social assistance within the initial five-year period, they may also test the lawfulness of an individual’s residence when they apply for recognition of their permanent residence status, and the more secure form of residence (and social rights) that this status entails. After all, according to the combined effects of Ziolkowski and Dano, it is the same legal residence under Article 7 of Directive 2004/38 that gives access to both.51 Member States are thus asking not only for proof of legal residence at the time of applying for permanent residence status, but also demanding proof that residence was legal under Article 7 for the entire five-year period preceding the application. This bureaucratic exercise will lead to increasing numbers of negative findings. It will also be problematic for administrations because the Court is likely to insist on an assessment which bears the individual circumstances of the case in mind and allows for proof of legal residence in a flexible, nonformalistic way. The Court will probably water down the clarity of Ziolkowski in future cases. After all, permanent residence is a right provided in the Directive and is meant to function as a ‘genuine vehicle for integration’ by providing unconditional rights after it is obtained.52 Excessive bureaucratic demands and the precarious situation arising from the fact that applicants for recognition of permanent residence are suddenly confronted with a potential statement of illegality of their

50

51 52

Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 926; Thym, ‘When Union Citizens Turn into Illegal Migrants’, pp. 257–258. Carter and Jesse, ‘The “Dano Evolution”’. Joined cases C‑424/10 and C‑425/10, Ziółkowski & Szeja ECLI:EU:C:2011:866, para. 41; Joined Cases C‑316/16 and C‑424/16, B & Franco Vomero ECLI:EU:C:2018:256, para. 54.

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 ‘ ’

residence altogether, just as applicants for social benefits, is hardly in accordance with this objective and purpose of permanent residence. Recent developments in the UK are a good example of how such bureaucratic mechanics relating to applications for permanent residence work to the detriment of applicants. Seeking to guarantee rights postBrexit, many EU migrants have sought permanent residence, which involved filling in an application form of more than 80 pages. To the surprise of many applicants, they were not eligible to claim permanent resident status under Article 16(1) of the Citizen’s Directive despite residing in the UK for many years.53 Countless claims were rejected because of short gaps in their working history or because they spent a brief period of time residing outside the UK. Most worrying, however, was that economically inactive migrants found their claims rejected because they were held not to have had compulsory sickness insurance.54 Requiring private health insurance in the UK context is strange, seeing as everyone, including economically inactive persons, have access to all forms of emergency and non-emergency healthcare under the National Health Service (NHS). As such, a lot of EU citizens were living in the UK for many years, completely unaware that despite being able to obtain healthcare through the NHS, they were technically illegal migrants under the UK interpretation of Article 7 Directive 2004/38 due to not having private health insurance, a fact they would only find out once they had their permanent residence application rejected. It has been estimated that even in 2016 almost a third of EU citizens’ applications for permanent residence were rejected, while almost half of all negative decisions relating to immigration status in the UK are eventually overturned on appeal.55 However, despite the bizarre nature of this situation, British courts have been amenable to the Government’s strict interpretation of the Directive. The fact that individuals had barely

53

54

55

The 85-page application form can be seen at https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/786255/eea-_pr_-03-19.pdf, last accessed 22 June 2020. Another condition for legal residence under Art. 7(1) Directive 2004/38. See Ahmad v. Secretary of State for the Home Department [2014] EWCA Civ 988. See, amongst others, J. Elgot, ‘Rejection of EU Citizens Seeking UK Residency Hits 28%’, Guardian Online, 27 February 2017, available at www.theguardian.com/uk-news/2017/ feb/27/rejections-eu-citizens-seeking-uk-residency, last accessed 22 June 2020. See also BBC News, ‘Serious Flaws in UK Immigration System, Law Society Warns’, BBC News Website, 12 April 2018. Available at www.bbc.com/news/uk-politics-43737542, last accessed 22 June 2020.

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relied on the NHS during the period in question was held not to be a relevant consideration, as it would still mean that the host state was liable to assume the consequences of the absence of health insurance by the individual.56 In the face of widespread criticism over the policy, the UK Government abolished the health insurance requirement when switching from the EU system of permanent residence to the post-Brexit system of settled status.57 Yet, the episode highlights the problems with a formal and literal interpretation of Directive 2004/38 applied by national administrators, who are not always sufficiently knowledgeable and trained to apply terms in light of the objective and purpose of the Directive.

15.4.3

Returning with Family to Home Member State after ‘Illegal’ Residence in Host Member State

Returning home following a period of residence in another Member State is one of the few areas where the Court’s interpretation of the Directive has been advantageous to EU citizens, even in situations where it technically does not apply. In O & B, the Court required that legal return to a home Member State can only occur with family members from thirdcountries if their residence in the host Member State was ‘genuine’ under the requirements set out in Article 7 of Directive 2004/38.58 This was later repeated in the Coman case, this time regarding a return with a same-sex spouse.59 Once again, residence fulfilling the conditions of Article 7 Directive 2004/38 was required by the Court as the starting point to assess the legality and rights of acts of EU citizens. Practically, in the absence of economic activity, this means residence in the host state must have been longer than a period of 3 months and fulfilling the conditions of ‘sufficient resources’ and ‘possession of a comprehensive health insurance’ as set out in Article 7 Directive 2004/38. Taking these dicta as a starting point, the question arises as to whether returning together with family members from third-countries to the EU citizen’s home state is possible in cases where residence in the host Member State was (allegedly) not in conformity with Article 7 of

56

57

58 59

Ahmad v. Secretary of State for the Home Department [2014] EWCA Civ 988, para. 51 (Lady Justice Arden). The UK Government guidelines on the post-Brexit settled status are available at www.gov .uk/settled-status-eu-citizens-families, last accessed 22 June 2020. Case C-456/12, O & B ECLI:EU:C:2014:135, para. 56. Case C-673/16, Coman ECLI:EU:C:2018:385, paras. 24–26, 51.

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Directive 2004/38. This question is not a moot point, as can be seen from the number of recent cases concerning returning citizens.60 In all these cases the Court held that the Directive applies in analogy and that homeMember States must provide rights for the family member not below the standard provided for in the Directive.61 However, these rights for returning citizens only apply when residence in the host Member State was in accordance with Articles 7 or 16(1) of the Directive. This reasoning suggests that residence not meeting the conditions set out in Directive 2004/38 means that the returning citizen is not covered by Articles 20 or 21 TFEU, and the application of the Directive by analogy. The question of whether the home-Member State can deny entry and residence of family members upon their return from another Member State, where they presumably enjoyed a derived right of residence, stating itself that residence in the host-Member State was not in conformity with Article 7 of Directive 2004/38, needs an answer. Not every Member State provides appropriate documentation about the legality of the individual’s stay, and some will provide them but only at a high administrative cost. It seems inappropriate for the home-Member State to second guess the legality of stay in the host-Member State, or to doubt credible reports of returning EU citizens in this regard, especially in a situation where a third-country national family member was residing there with the EU citizen. Moreover, what will happen when an EU citizen is returning to their Member State of origin with family after the host Member State has decided that what was once legal residence has subsequently turned illegal under the new formalistic interpretation of Article 7, perhaps on the grounds of a sufficient means test after an application for social assistance benefits in the host Member State? Would a returning citizen in such a situation still fall under Articles 20 and 21 TFEU? If such a return to the home-state with family members is deemed to be outside the scope of EU law altogether because no right to reside existed in the host Member State, not much would have remained of the Courts traditional stance that restrictions to the right of return form a restriction

60

61

This includes, O & B and Coman, Case C‑89/17, Banger ECLI:EU:C:2018:570; and more widely Case C-165/16, Lounes EU:C:2017:862; Case C‑94/18, Chenchooliah ECLI:EU: C:2019:693. See S. Van den Bogaert, M. Jesse, Ben Van Rompuy, Vestert Borger, and Maarten Aalbers, ‘Kroniek van het Europees materieel recht’ (2019) (35) Nederlands Juristenblad, 2656.

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to the right of free movement.62 The Court will at a certain point inevitably have to reconcile the strict interpretation of legal residence under Directive 2004/38 and its potential effects with the long tradition of seeing the right to return home as an integral part of free movement. This will not be an easy task, and might lead to a situation where illegal residence under Directive 2004/38 in a host Member-State can lead to a perfectly legal return with family under general free movement provisions in the Treaties.

15.5

Concluding Remarks: The Logic and Effects of Market Citizenship

The formalised system that defines legal residence exclusively with reference to Directive 2004/38 is liable to (re-)emphasize economic ties between the citizen and the host-society and the EU migrant as well as the wealth of EU citizens as the main decisive factor in determining the legal status of EU migrants.63 However, this is the rule rather than the exception: market citizenship has always been the method of allocating rights to EU citizens who move to another Member State and their ability to access welfare, including for economically inactive Union citizens.64 It is now clear that the Court is not pushing towards a model of truly social citizenship in the EU. Union citizens are still inevitably divided into more and less privileged categories, predominantly on the basis of economic ‘value’. Recent cases demonstrate how the distance as regards entitlements and equality between the categories of EU migrants mentioned in Article 7 Directive 2004/38 is increasing, with economically active persons on top of the hierarchy.65 However, this is certainly not some kind of paradigm shift. The abovementioned developments confirm that what Kay Hailbronner concluded already in 2005 is still true: it is (still) the State of origin that is ultimately responsible for the welfare of EU citizens in the absence of an economic link with the host Member State or permanent resi-

62 63 64

65

Ibid., p. 2656. See O’Brien, ‘Civis Capitalist Sum’, p. 961. For an overview on market-citizen case-law and development, see L. Azoulai, ‘Transfiguring European Citizenship: From Member State Territory to Union Territory’, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), pp. 178–203. Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 926.

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 ‘ ’

dence.66 This ‘ultimate responsibility’ has been confirmed by recent case law,67 and not only in the field of accessing social benefits, but as part of a wider approach of the Court, ranging from developing minimum rules on how to treat your own citizens in Zambrano and Alopka,68 via the responsibility of Member States of origin for their own citizens who engaged in criminal activities in another Member State,69 to the responsibility of the Member State of origin for allowing the exporting of benefits to another Member State.70 In a case, which was decided almost parallel to Förster, German students were allowed to take their German study benefits abroad to another Member State.71 So while accessing student financing in another Member State was made more difficult, the Court permitted the export of such benefits from the home Member State. The same occurred with regard to unemployment benefits or minimum subsistence fees, which can usually be exported and enjoyed in another Member State, at least for a period of time. From this perspective, the Court’s case-law and its interpretation of Directive 2004/38 does not deny any EU citizen care or access to social benefits. It merely states which Member State is responsible for providing such care and welfare, and under which circumstances. In the case of economically inactive EU citizens without sufficient resources, this is the Member State of origin and not the host-Member State. The only way to move the responsibility of care from the home-Member State and towards the host state is through the rules laid down in Directive

66

67 68

69

70 71

K. Hailbronner, ‘Union Citizenship and Access to Social Benefits’(2005) 42(5) Common Market Law Review, 1267, as quoted by Thym, ‘The Elusive Limits of Solidarity’, p. 49. Even critics agree with this. Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 934. Case C-34/09, Zambrano ECLI:EU:C:2011:124; Case C‑86/12, Alokpa ECLI:EU: C:2013:645; see also M. F. Haag, ‘Die Letztverantwortung des Herkunftsmitgliedstaates im Unionsbürgerrecht’, in D. Thym and T. Klarmann (eds.), Unionsbürgerschaft und Migration im aktuellen Europarecht (Baden-Baden: Nomos, 2017), pp. 20–23. See Chapter 9 by Hamenstädt, see also Case C-145/09, Tsakouridis ECLI:EU:C:2010:708; Case C‑348/09, P.I. ECLI:EU:C:2012:300; see K. Hamenstädt, ‘Unionsbürgerschaft an der Schnittstelle zwischen Integration, Solidarität, und sozialem Zusammenhalt’, in D. Thym and T. Klarmann (eds.), Unionsbürgerschaft und Migration im aktuellen Europarecht (Baden-Baden: Nomos, 2017), pp. 41–67, pp. 49–53. Cases like Tsakouridis or Onukwere were heavily critiqued, going as far as to mention the Court would have re-vitalised banishment and even ‘civil death’ as an additional punishment for EU migrants; Nic Shuibhne, ‘Limits Rising, Duties Ascending’, pp. 923–924; U. Belavusau and D. Kochenov, ‘Kirchberg Dispensing the Punishment: Inflicting “Civil Death” on Prisoners in Onuekwere (C-378/12) and MG (C-400/12)’ (2016) 41(4) European Law Review, pp. 558, 575ff. See Joined Cases C‑11/06 and C‑12/06, Morgan & Butcher ECLI:EU:C:2007:626. Ibid.

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2004/38/EC. This leaves economically active citizens in their traditionally privileged position. The weakest link with the host Member State, and, as a consequence, the weakest claim to ‘responsibility’ for welfare in the host-Member State under Directive 2004/38 is left for individuals that do not partake in economic activities and do not have sufficient means at their disposal. It should be kept in mind that such arrangements about how to distribute welfare costs are not uncommon in federal systems.72 Even though this may be legally coherent, the way in which it excludes EU citizens is arguably at odds with the main objective and purpose of the Directive, which is to foster free movement and equal treatment of all EU citizens.73 Whilst EU citizens might technically have support from their state of origin, this means little when they are excluded from legal protection in their actual state of residence. As Kochenov has put it, such an interpretation of EU citizenship, wherein protection is overridden by personal economic circumstances and wherein individuals ‘become invisible in the eyes of the powers that be’ is ‘precisely what citizenship, at its conception, was supposed to make impossible’.74 72

73

74

See, about federal systems and restrictions of movement, W. Maas, ‘Free Movement and Discrimination: Evidence from Europe, the United States, and Canada’ (2013) 15(1) European Journal of Migration and Law, pp. 108–110; who compare the development of federal bargains about citizenship rights, especially the free movement of poor citizens, in the US and Switzerland. D. Kochenov, ‘On Tiles and Pillars: EU Citizenship as a Federal Denominator’, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), pp. 3–82. It took until 1941 to prevent US Federal States to ban the immigration of poor citizens from other Federal States, see US Constitutional Court, Edwards v. California 314 US 160 (1941), however, cases still arise about the exact content of equal treatment, see US Supreme Court, Saenz v. Roe, 526 US 489 (1999); US federal states are still allowed to discriminate vastly against non-residents, for example with regard to study fees or recognition of professional qualifications; see F. Strumia, ‘Citizenship and Free Movement’ (2006) 12(3) Columbia Journal of European Law, 741–746. See also in a formidable comparison between the development of US and EU citizenship, F. Strumia, ‘Individual Rights, Interstate Equality, State Autonomy: European Horizontal Citizenship and Its (Lonely) Playground from a Trans-Atlantic Perspective’, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), pp. 615–641. As the Court has previously stated, for example in Case C‑483/17, Tarola ECLI:EU: C:2019:309, para. 23; Case C-93/18, Ermira Bajratari ECLI:EU:C:2019:809, para. 47. A more detailed assessment of the various objectives within the Directive can be found in the Opinion of Advocate General Szpunar in Case C-93/18, Ermira Bajratari ECLI:EU: C:2019:512, para. 57. Kochenov, ‘The Citizenship of Personal Circumstances in Europe’, pp. 37–38; similar conclusions speaking of a ‘narrow type of solidarity’ only being available for those who do not need it after the judgements are reached by Minderhout and Mantu, ‘Back to the Roots?’, p. 207.

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 ‘ ’

Yet, it would be unfair to focus all criticism for the implicit ‘othering’ of EU citizens along economic lines on the Court of Justice. The Court has done little more than recognise the choices made by the EU legislature.75 This legislature, i.e. the European Parliament and Council of Ministers, did not have the will or desire to extend equality of treatment to economically inactive individuals. It is also hyperbolic to accuse the Court of ‘abandoning’ EU citizenship altogether.76 Within the framework of the Directive, the Court has also interpreted its rights and obligations in favour of citizens, as cases such as Gusa, Diallo, Tarola, or Barjatari have shown.77 This simply conforms with the theory posited by Sarmiento and Sharpston that the Court does not see the ‘core of the status of citizenship’ as the ability to access social benefits. Rather, the core is to be found in ‘very core constitutional principles’ such as ‘the protection of fundamental rights, the development of democracy, and the Rule of Law’.78 This way the core of EU citizenship can be protected as the most fundamental status of EU Citizens at the same time as access to welfare is limited. Within what Nic Shuibhne calls ‘the EU federal bargain’ the Court simultaneously protects the rights of citizens and ‘(revised) balance’ of powers.79 In light of this, any future changes to the legal situation of EU citizens, and particularly the ability of economically inactive citizens to access social benefits under Directive 2004/38, must be expected from amendments to the Directive itself and not from the Court through its interpretation of the Directive. 75

76 77

78

79

M. van den Brink, ‘The Court and the Legislators: Who Should Define the Scope of Free Movement in the EU?’, in R. Bauböck (eds.), Debating European Citizenship (Cham: Springer IMISCOE Research Series, 2019), pp. 133–138. N. Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 936. Cases C‑442/16, Gusa ECLI:EU:C:2017:1004; C-246/17, Diallo ECLI:EU:C:2018:499; C483/17, Tarola ECLI:EU:C:2019:309; Case C-93/18, Ermira Bajratari ECLI:EU: C:2019:809. D. Sarmiento and E. Sharpston, ‘European Citizenship and Its New Union: Time to Move on?’, in D. Kochenov (ed.), EU Citizenship and Federalism – The Role of Rights (Cambridge: Cambridge University Press, 2017), p. 227. N. Nic Shuibhne, ‘Recasting EU Citizenship as Federal Citizenship: What Are the Implications for the Citizen When the Polity Bargain Is Privileged?’, in D. Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge: CUP, 2017), p. 167.

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16 Inclusion and Exclusion of Migrant Workers in the EU   16.1

Introduction

European integration has historically been characterised by a market logic that retains the most secure forms of lawful residence, and the most far-reaching set of rights, to EU citizens that engage in economic activity in a host-Member State. In contrast, for economically inactive citizens of the Union, there is on offer only a more tepid form of ‘social’ citizenship, with a lower legal status, and more limited and conditional rights. However, notwithstanding these market confines, the traditional acquis of the CJEU has actually had the effect of protecting EU migrant workers engaged in lower-paid employment. Through the principle of equal treatment, the Court has included individuals within the social structures of host-Member States, thereby granting them a wide range of rights, in particular social benefits. Whilst the normative battle over the precise rights and protections available to economically inactive migrants rages on, workers even on the fringes of economic activity have found their legal status and rights to be secure. However, recent legal developments are suggested to undermine this traditional stance. Instead, the protection offered by EU law is now suggested to be ‘the preserve of capitalistclass workers, leaving the working proletariat at greater risk of poverty’,1 and that EU law protects only those migrants that do not need protection, and only at times when protection is unnecessary.2 This chapter will assess the extent to which the EU legal system can exclude those EU migrant workers on the fringes of economic activity. First, it will be explained how the ‘working proletariat’ should be 1

2

C. O’Brien, ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53(4) Common Market Law Review, 941. See D. Kochenov, ‘The Citizenship of Personal Circumstances in Europe’, in D. Thym (ed.), Questioning EU Citizenship: Judges and Limits of Free Movement and Solidarity in the EU (Oxford: Hart Publishing, 2017), p. 51.

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understood in the 21st century with reference to employment-based precarity and the legal status and rights associated with it. Secondly, it will be explained how the introduction of Union citizenship, rather than offering a form of safety net for EU migrants regardless of their legal status, has in some cases actually resulted in less protection being afforded to those on the margins of economic activity. This means that the legal framework has shifted from one predominantly of inclusion to one of exclusion, where workers’ legal status are more conditional, thereby commodifying their labour and disadvantaging them vis-à-vis Member State nationals. Finally, the implications of such an exclusionary system will be discussed, insofar as it is liable to result in the further stigmatisation and social exclusion, which paradoxically is likely to result in the negative consequences often associated with low-wage labour migration.

16.2 Forms of Employment over Time 16.2.1 From Bretton Woods to Neoliberalism In the period directly following the second world war, labour markets, like financial markets, functioned on what is referred to as the ‘Bretton Woods’ system, which was shaped by the role of the laissez-faire liberal economic model that was considered to have contributed to the Great Depression and ultimately to the rise of fascism in Europe during the 1930s.3 Within the Bretton Woods system, it was considered that the reestablishment of global free trade and multilateralism needed to be embedded within domestic social policies that would be determined at the national level.4 These domestic policies coalesced around Keynesian, demand-based economics: the ultimate aim of full employment under 3

4

D. Ashiagbor, ‘Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration’ (2013) 19(3) European Law Journal, 303–324; M. Goldmann, ‘The Great Recurrence: Karl Polanyi and the Crises of the European Union’ (2017) 23(3–4) European Law Journal, 272–289; K. Polanyi, The Great Transformation (Boston: Beacon Press, 1944). J. Ruggie, ‘International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic Order’ (1982) 36(2) International Organisation, 379–415; A. Eckes, A Search for Solvency: Bretton Woods and the International Monetary System, 1941–1971 (Austin: University of Texas Press, 1975); D. Harvey, A Brief History of Neoliberalism (New York: Oxford University Press, 2005); J. Caporaso and S. Tarrow, ‘Polanyi in Brussels: Supranational Institutions and the Transnational Embedding of Markets’ (2009) 63(4) International Organisation, 593–620.

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the ‘standard model’ of full-time, permanent employment in almost all sectors and at all levels, stronger employment protections, and increased welfare provision.5 This embedding of global markets within domestic social policies, and the fixed labour markets and stronger employment protections it resulted in, led to a prolonged period of strong growth. By the 1970s, however, it was suggested to adversely affect hiring and firing decisions and economic growth in general.6 As such, since then this model has been replaced by a more neoclassical (or ‘neoliberal’) system based on supply-side economics, which has had consequences for both labour markets and the norms and attitudes surrounding employment.7 This ‘neoliberal’ model focuses on the creation and maintenance of competitive labour markets, with flexible employment relations, as well as ‘activating’ welfare policies aimed at re-integration into the labour market.8 This has resulted in the standard model of employment being replaced by more flexible forms of employment, such as part-time work, fixed-term work, etc.9 These changes occurred at a gradual pace until the Global Financial Crisis of 2008, after which there was a renewed focus on reducing labour costs and welfare provision in most Member States, often referred to as ‘austerity’ policies, which resulted with even more insecure and precarious forms of employment.10

5

6

7

8

9

10

S. Giubboni, ‘Social Rights and Market Freedom in the European Constitution: A ReAppraisal’ (2010) 1(2) European Labour Law Journal, 161–184; P. Addison, The Road to 1945: British Politics and the Second World War (London: Random House, 1994); M. Blyth, Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century (Cambridge: Cambridge University Press, 2002), pp. 20–23. Blyth, Great Transformations; see also M. Kalecki, ‘Political Aspects of Full Employment’ (1940) 14(4) The Political Quarterly, 322–331. Blyth, Great Transformations; Joseph Stiglitz, José Antonio Ocampo, Shari Spiegel, Ricardo Ffrench-Davis, and Deepak Nayyar, Stability with Growth: Macroeconomics, Liberalization and Development (Oxford: Oxford University Press, 2006). M. Ferrera, The European Union and National Welfare States, Friends, not Foes: But What Kind of Friendship? (URGE Working Paper, 4/2005); S. Wright, ‘Welfare-to-Work, Agency and Personal Responsibility’ (2012) 41(2) Journal Social Policy, 309–328. J. Cremers, Non-standard Employment Relations or the Erosion of Workers’ Rights (Solidar Briefing Papers 23, 2010); A. Thornquist, ‘False Self-employment and Other Precarious Forms of Employment in the “Grey Area” of the Labour Market’ (2015) 31(4) International Journal of Comparative Labour Law and Industrial Relations, 411–429. G. van Gyes and L. Szekér, Impact of the Crisis on Working Conditions in Europe (Leuven: EurWORK, HIVA-KU Leuven, 2013).

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16.2.2

Non-standard and Flexible Forms of Employment

Not all non-standard or flexible employment should always be viewed in negative terms.11 Increased flexibility can mean greater independence, which for some means more autonomy and a better work–life balance.12 However, problems arise when the worker is involuntarily forced into a such a position, and they view their flexibility as undesirable.13 This is more likely to be the case for lower-wage workers, whose engagement in such employment can result in insecurity relating to: (i) work contract; (ii) work schedule; (iii) earnings; (iv) job tasks; and (v) enforceable employment and workplace rights.14 As shall be explained below, the most typical examples of such employment in terms of how they affect EU migrant workers are marginal part-time work; bogus or false selfemployment; and the repeated use of fixed-term contracts.15 Part-time work can be defined as employment with less than the normal hours of comparable full-time work.16 Generally, part-time workers report higher levels of job satisfaction with regards to working conditions and general health than full-time workers.17 However, when engaged in less than half-time employment (‘marginal’ employment), or those who would prefer more hours, part-time workers report less job security, fewer career opportunities, less training investment by the

11

12

13

14

15

16

17

Andrea Broughton, Martha Green, Catherine Rickard, Sam Swift, Werner Eichhorst, Verena Tobsch, Iga Magda, Piotr Lewandowski, Roma Keister, Dovile Jonaviciene, Nuria Elena Ramos Martín, Daphné Valsamis, and Frank Tros, Precarious Employment in Europe, IP/A/EMPL/2014-14 PE 587.285 (DG Internal Policies, European Parliament, 2016), p. 84. A. Broughton, I. Biletta and M. Kullander, Flexible Forms of Work: Very Atypical Contractual Arrangements (Dublin: EurWORK, 2010), available at eurofound.europa .eu, last accessed 22 June 2020. EPSC Strategic Notes, The Future of Work: Skills and Resilience for a World of Change (Issue 13, 10 June 2016). D. Tucker, Precarious Non-standard Employment: A Review of the Literature (Wellington: Labour Market Policy Group, 2003); see also G. Standing, The Precariat: The Dangerous New Class (London: Bloomsbury, 2011). Broughton, Precarious Employment in Europe; Pedro Miguel Cardoso, Isil Erdinc, Jeroen Horemans, and Scott Lavery, Precarious Employment in Europe (Vienna: Renner Institute, 2014); Sonia McKay, Steve Jefferys, Anna Paraksevopoulou, and Janoj Keles, Study on Precarious Work and Social Rights, VT/2010/084 (London: Working Lives Institute, 2012). Clause 3(1), Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, OJ 1998 No. L14/9, 20 January 1998. Broughton, Precarious Employment in Europe, p. 70.

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employers, weaker pay, and lower job satisfaction.18 Their position is very insecure: they do not generate enough income to provide for the future, and often the amount and schedule of work can be changed by an employer with little or no notice.19 Marginal part-time work has risen since the Global Financial Crisis.20 In 2012, a quarter of all part-time work in the EU was reported to be involuntary, however, this is country specific: whilst in the Netherlands (where over 50 per cent of all work is part-time), just 4.5 per cent of part-time workers consider their situations to be ‘involuntary’, in Greece 70 per cent of part-time workers would prefer more hours.21 Self-employment is defined as the pursuit of gainful activity for one’s own account.22 Like part-time work, self-employment is generally reported to have good working conditions, with high job satisfaction relating to career opportunities, job security, and pay.23 However, increasingly those engaged as self-employed will work for just one client, under the same conditions as paid-employees, but assume the costs, risks, and responsibilities associated with self-employment.24 The normal activities associated with self-employment are missing, for example tendering for different contracts, negotiating the price for a particular service, or employing workers to perform specific jobs.25 They have little say over their working hours, cannot refuse jobs, and are required to obey instructions on a daily basis.26 This is referred to as ‘bogus’ or ‘false’ selfemployment, and is used predominantly by employers to evade tax and insurance obligations associated with paid-employment.27 As they are not entitled to the same rights and protections, this can place these 18 19 20 21 22

23 24 25 26

27

Ibid. McKay, Study on Precarious Work and Social Rights, p. 24. Broughton, Precarious Employment in Europe, p. 69. Ibid. Art. 2(a), Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, OJ 2010 No. L180/1, 15 July 2010. Broughton, Precarious Employment in Europe, p. 84. Thornquist, ‘False Self-employment’, p. 412. Ibid., 970. F. Behling and M. Harvey, ‘The Evolution of False Self-employment in the British Construction Industry: A Neo-Polanyian Account of Labour Market Formation’ (2015) 29(6) Work, Employment and Society, 970; Thornquist, ‘False Self-employment’, p. 412. Behling and Harvey, ‘The Evolution of False Self-employment’; Thornquist, ‘False Selfemployment’, p. 412; C. Thornquist, ‘Welfare States and the Need for Social Protection of Self-employed Migrant Workers in the European Union’ (2015) 34(4) International Journal of Comparative Labour Law and Industrial Relations, 391–410.

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persons in a disadvantaged position vis-à-vis paid-employees, resulting in a destabilisation of the labour market and the distortion of competition.28 Fixed-term work is defined as an employment relationship where the end of the employment contract is related to reaching a specific date, task, or event.29 Before the Global Financial Crisis, the use of fixed-term contracts was decreasing, however, this trend has since reversed.30 Fixedterm work is suggested to facilitate entry into positions that might otherwise be unattainable on a permanent basis, however, the vast majority of fixed-term workers would prefer a permanent contract.31 It often results in a never-ending carousel, with workers engaged indefinitely on fixed-term contracts without being offered a permanent position. Once the employer is legally obliged to offer a permanent position, their contact is often not renewed and the cycle begins again with a new temporary worker. This results in a high power imbalance, undermines solidarity by pitting temporary and permanent workers against each other, and distorts competition on the labour market.32 The employment practices described in this chapter reverts to a level of work insecurity that was not even present during the Bretton Woods era.33 The worker is in a more insecure position on the labour market visà-vis both national workers and employers, and becomes more reliant on the market for their survival.34 Finally, it should be emphasised that in general migrants are likely to be most affected by this precarity, as they are overrepresented in such forms of employment, and also face a more insecure legal position: the conditionality of the system means that they must take into consideration not simply their place on the labour market, but also their legal status in the host country.35 28

29

30 31 32 33

34

35

Thornquist, ‘False Self-employment’, pp. 412–413; Cremers, Non-standard Employment Relations, p. 7. Clause 3(1), Directive 99/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, OJ 1999 No. L175/43, 10 July 1999. McKay, Study on Precarious Work and Social Rights, p. 18. Broughton, Precarious Employment in Europe, p. 103. McKay, Study on Precarious Work and Social Rights, pp. 18–19. Thornquist, ‘False Self-employment’, p. 414; see also G. Esping-Andersen, The Three World of Welfare Capitalism (Cambridge: Polity Press, 1990). Victoria Porthé, Emily Ahonen, M. Luisa Vázquez, Catherine Pope, Andrés Alonso Agudelo, Ana M. García, Marcelo Amable, Fernando G. Benavides, and Joan Benach, ‘Extending a Model of Precarious Employment: A Qualitative Study of Immigrant Workers in Spain’ (2010) 53(4) American Journal of Industrial Medicine, 417–424; Thornquist, ‘Welfare States and the Need for Social Protection’, p. 395. I. Greer, ‘Welfare Reform, Precarity and the Re-commodification of Labour’ (2016) 30(1) Work, Employment and Society, 162–173; see also O’Brien, ‘Civis Capitalist Sum’, p. 975.

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16.3



Inclusion and Exclusion in EU Free Movement Law 16.3.1

EU Workers: Equal Treatment As Inclusion

Turning now to the development of the law relating to the free movement of workers, the acquis of the CJEU has traditionally had the effect of protecting workers by including them within the social structures of a host-Member State. Concretely, the right to non-discrimination was interpreted as encompassing not just access to and conditions of employment, but also ‘all social advantages’ under Article 7(2) of (then) Regulation 1612/68.36 The same provision is now contained in Article 7(2) Regulation 492/2011.37 The concept of social advantages was interpreted to include virtually every social right or benefit available to Member State nationals, either by reason of them being classified as workers, or simply due to their residence within that state.38 Consequently, given the farreaching material rights of EU migrant workers, the main legal issue centred predominantly on who should be classified as a worker, thereby being entitled to such rights through the principle of non-discrimination. Generally speaking, the standard model of employment meant that most workers were automatically classified as such under national law. However, even in the situations where a worker was on the margins of economic activity, the Court interpreted the definition of ‘worker’ widely. For example, part-time workers, particularly those on a low income and receiving state benefits,39 and on-call employees working for a short period of time,40 were all classified as workers, thereby thereby entitling them to the same rights as permanent, full-time employees. Moreover, it gradually granted residence and (more limited) equal treatment rights for jobseekers,41 as well as guaranteeing the continued residence and equal treatment rights of ex-workers and those in-between jobs.42

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Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, OJ 1968 No. L257/2, 19 October 1968. Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, OJ 2011 No. L141/1, 27 May 2011. Case 207/78, Even ECLI:EU:C:1979:144, para. 22; see also Opinion of Advocate General Jacobs in Case C-43/99, Leclere ECLI:EU:C:2001:97, para. 96; see also E. Ellis, ‘Social Advantages: A New Lease of Life’ (2003) 40(3) Common Market Law Review, 639–659. Case 53/81, Levin ECLI:EU:C:1982:105; Case 139/85, Kempf ECLI:EU:C:1986:223. Case C-357/89, Raulin ECLI:EU:C:1992:87. Case 48/75, Royer ECLI:EU:C:1976:57; Case C-292/89, Antonissen ECLI:EU:C:1991:80. Case C-75/63, Unger ECLI:EU:C:1964:19.

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The Court emphasised that the concept of worker under EU law required an autonomous definition in order to preserve the uniform applicability of EU law in all EU Member States.43 Whilst this concept has never been formally recognised in secondary legislation,44 in the case of Lawrie-Blum the Court articulated the test for the first time. The individual must ‘. . . for a certain period of time . . . perform services for and under the direction of another person in return for which he (or she) receives remuneration’.45 This three prong test of (i) remuneration, (ii) subordination, and (iii) genuine economic activity was interpreted to encompass the majority of workers, regardless of the marginal or insecure nature of such employment. Remuneration has been interpreted to include any payment for services performed, regardless of the form, nature, or source of such funds.46 The only limit is that it excludes volunteering, unpaid internships, and informal work.47 Subordination has been interpreted as requiring the performance of an activity under the direction and supervision of an employer, as opposed to performing a contract for services (i.e. selfemployment).48 Whilst workers and self-employed persons have almost precisely the same residence and equal treatment rights,49 self-employed persons do not have the rights and protections that employees are entitled to under labour law and collective agreements,50 including EU labour legislation.51 In keeping with the autonomous definition of the 43

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Case 66/85, Lawrie-Blum ECLI:EU:C:1986:284, para. 16; see also Case 316/85, Lebon EU: C:1987:302, para. 21. B. Bednarowicz, ‘Workers’ Rights in the Gig Economy: Is the New EU Directive on Transparent and Predictable Working Conditions in the EU Really a Boost?’, EU Law Analysis, 24 April 2019; M. Risak and T. Dullinger, The Concept of ‘Worker’ in EU Law: Status Quo and Potential for Change (ETUI Report 140, 2018). Case 66/85, Lawrie-Blum ECLI:EU:C:1986:284, para. 17. This can include quid pro quo payments (see Case 196/87, Steymann v. Staatssecretaris van Justitie ECLI:EU:C:1988:475; Case C-456/02, Trojani ECLI:EU:C:2004:488, or indeed payments from the state by way of benefits (see also Case 139/85, Kempf ECLI:EU: C:1986:223). N. Kountouris, ‘The Concept of Worker in European Labour Law: Fragmentation, Autonomy and Scope’ (2018) 47(2) Industrial Law Journal, 221. Behling and Harvey, ‘The Evolution of False Self-employment’, p. 977; Cremers, Nonstandard Employment Relations. For example, see cases such as C-337/97, Meeusen ECLI:EU:C:1999:284, and C‑442/16, Gusa ECLI:EU:C:2017:1004. S. Giubboni, ‘Being a Worker in EU Law’ (2018) 9(3) European Labour Law Journal, 223–235; Thornquist, ‘False Self-employment’, p. 412. For example, Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time, OJ 2003 No. L299/9,

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worker, the Court has maintained that the classification as self-employed under national law does not prevent the individual’s classification as a worker under EU law, if their status is ‘merely notional, disguising an employment relationship’.52 In determining this, the Court will look at the individual’s freedom to choose the timetable, place, and content of their work,53 as well as their independence on the market, dependence on the employer, and the extent to which they share the employer’s commercial risks.54 Recently, the Court considered the importance of a ‘hierarchical relationship’, which has to be considered on a case-by-case basis, considering ‘all the factors and characteristics of the relationship’.55 Foster parents were considered to be in a relationship of subordination with the state, as there was ‘permanent supervision and assessment of their activity’.56 In addition to remuneration and subordination, the individual must be engaged in ‘genuine and effective’ employment. The employment must form ‘part of the normal labour market’,57 and must also not be performed ‘on such a small scale as to be regarded as purely marginal and ancillary’.58 This evidently means that the fewer hours worked, the more difficult it may be to establish that the work is genuine and effective.59 In particular, the ‘irregular nature and limited duration’ of the employment, and a ‘very limited’ number of hours may indicate that the activities exercised are purely marginal and ancillary.60 Despite these assertions, the Court has historically been reluctant to find work to be marginal in practice.61 A ‘low income’ is not enough to result in marginal

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18 November 2003; and Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, OJ 2006 No. L204/ 23, 26 July 2006. Case C-256/01, Allonby ECLI:EU:C:2004:18, para. 71; see Kountouris, ‘The Concept of Worker in European Labour Law’, p. 202. Case C-256/01, Allonby ECLI:EU:C:2004:18, para. 72. Case C‑413/13, FNV ECLI:EU:C:2014:2411, para. 33, 36. Case C‑147/17, Sindicatul Familia Constanţa ECLI:EU:C:2018:926, para 42. Ibid., para 45. Case C-456/02, Trojani ECLI:EU:C:2004:488, para. 15; see also Case C‑316/13, Fenoll ECLI:EU:C:2015:200, para. 42. Case 197/86, Brown ECLI:EU:C:1988:323, para. 17. Opinion of Advocate General Gordon Slynn in Case 53/81, Levin ECLI:EU:C:1982:10, p. 1061. Case C-357/89, Raulin ECLI:EU:C:1992:87, para. 14. N. Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47(6) Common Market Law Review, 1597–1628.

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employment,62 even if lower than the minimum guaranteed remuneration in the sector concerned.63 Moreover, income may be derived from other sources to supplement their low earnings, like property, family members, or even state benefits.64 In terms of the amount of hours worked, part-time activity consisting of no more than 5–10 hours a week,65 or 45 hours per month, will not automatically preclude the classification of worker.66 The national court must also take into account factors such as the right to paid leave, sick pay, the application of collective agreements, and the length of employment.67 The Court’s case-law in the area of the free movement of workers demonstrates how it has traditionally interpreted the law, namely the principle of non-discrimination and the concept of worker, in a way that protected both the legal status and rights of low-paid workers. The Court was therefore inclusionary in its approach, even if the actual application of the worker definition test is performed by national authorities, which can lead to ambiguity and confusion over the meaning of the terms, and in some cases the outright undermining of the Court’s acquis.68

16.3.2 Union Citizenship I: Inclusion of the Economically Inactive Despite this inclusionary approach, the legal framework still meant that economically inactive persons, such as students and self-sufficient persons, were excluded from the scope of EU law. Given the aim of creating an ‘ever closer union between the peoples of Europe’ was difficult with so many restrictions and conditions of the movement of economically inactive persons, there was an increasing need to establish some sort of residual legal status and albeit more limited rights that would be conferred independently from economic activity.69 However, extending such 62

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Opinion of Advocate General Gordon Slynn in Case 53/81, Levin ECLI:EU:C:1982:105, p. 1061. Case 53/81, Levin ECLI:EU:C:1982:105, para. 16. Case 139/85, Kempf ECLI:EU:C:1986:223, para. 14. Opinion of Advocate General Geelhoed in Case C-413/01, Ninni-Orasche ECLI:EU: C:2003:117, para. 30; see also Case C-14/09, Genc ECLI:EU:C:2010:57. Case 171/88, Rinner-Kühn ECLI:EU:C:1989:328, para. 11. Case C-14/09, Genc ECLI:EU:C:2010:57, para. 27. C. O’Brien, E. Spavanta, and J. de Coninck, Comparative Report 2015. The Concept of Worker under Article 45 TFEU and Certain Non-standard Forms of Employment (Brussels: FresSco & DG for Employment Social Affairs and Inclusion, 2016). S. O’Leary, European Union Citizenship: The Options for Reform (London: IPPR, 1996), pp. 34–36; See also, for example, Proposal for a Council Directive on a right of residence

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rights has always been controversial: the limitations on rights, such as welfare entitlement, for these persons reflects the close relationship between the welfare and nation states in terms of the shared sense of identity which provides the moral force required to justify and legitimise policies of redistribution and social solidarity.70 The 1980s saw the first initiatives that sought to extend residence and equal treatment rights to economically inactive persons. The EU adopted three Residency Directives that established such a base of residence for students, ex-workers, and self-sufficient persons.71 However, all three Directives contained a specific derogation that such rights do not apply when to do so would result in an ‘unreasonable burden’ being placed on the welfare systems of the host-Member States. A more important development, however, came in the early 1990s with the introduction of European Union citizenship into the Maastricht Treaty. Whilst its concrete provisions were limited, the Court nevertheless used them to extend the scope of residence and equal treatment rights. It made the initial link between Union citizenship and non-discrimination in Martinez-Sala.72 It also held the rejection of a Third Country National spouse’s residence permit to be disproportionate, despite the applicant’s health insurance not covering all risks as was technically required under the applicable Directive.73 It also made a link between residence permits based on national law and the right to equal treatment under EU law.74 Furthermore, the denial of a residence right could not be the ‘automatic consequence’ of a request for social assistance, and that Member States must

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for nationals of Member States in the territory of another Member State, OJ C 207/14 (17 August 1979). M. Dougan, ‘Expanding the Frontiers of Union Citizenship by Dismantling the Territorial Boundaries of National Welfare States?’, in C. Barnard and O. Odudu (eds.), The Outer Limits of European Union Law (London: Hart, 2009), pp. 119–166; See also, M. Dougan and E. Spaventa, ‘Wish You Weren’t Here . . . New Models of Social Solidarity in the European Union’, in M. Dougan and E. Spaventa (eds.), Social Welfare and EU Law (London: Hart, 2005), pp. 181–218; F. Pennings, ‘EU Citizenship: Access to Social Benefits in Other Member States’ (2012) 28(3) International Journal of Comparative Labour Law and Industrial Relations, 307–333. Directive 90/364/EEC of the Council of 28 June 1990 on the right of residence , OJ 1990 No. L 180/28, 13 July 1990; Directive 90/365/EEC of the Council on the right of residence for employees and self-employed persons who have ceased their occupational activity, OJ 1990 No. L 180/28, 13 July 1990; Directive 93/96/EEC of the Council of 29 October 1993 on the right of residence for students, OJ 1993 No. L317/59, 18 December 1993. Case C-85/96, Martínez Sala ECLI:EU:C:1998:217. Case C-413/99, Baumbast ECLI:EU:C:2002:493. Case C-456/02, Trojani ECLI:EU:C:2004:488.

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demonstrate a ‘degree of financial solidarity’ with EU migrant students, assuming their financial difficulties are temporary and that they do not pose an ‘unreasonable burden’ on the Member State.75 Such cases strengthened the relationship between Union citizenship, national residence, and the principle of equal treatment, as well as establishing Union citizenship as an autonomous basis for residence. This suggested the formations of a safety-net for EU citizens, with individual applicants in a stronger position and a greater burden imposed upon national authorities.76

16.3.3

Union Citizenship II: No Safety Net

Despite this expansive early case-law, it must be concluded that Union citizenship does not in itself offer a comprehensive safety net for either economically active or inactive EU citizens.77 As argued in Chapter 15,78 there has been a noticeable shift in the approach of the Court towards the status and rights of those determined to be economically inactive, which has been haphazard and gradual since the adoption of Directive 2004/ 38.79 The first sign of the new approach was in the case of Förster, where the Court endorsed a Dutch rule that required students to be resident for five years before being entitled to student grants, and a reversal from the case of Bidar decided three years previously.80 The Court explicitly referred to the then un-transposed Directive 2004/38 and the link between permanent residence and student financing contained therein.81 In Ziółkowski, the Court held that the term ‘reside legally for a continuous period of five years’ introduced under Article 16(1) of the Directive on permanent residence status required that the individual was lawfully resident under Article 7 of the Directive for a continuous period of five

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Case C-184/99, Grzelczyk ECLI:EU:C:2001:458. D. Carter and M. Jesse, ‘The “Dano Evolution”: Assessing Legal Integration and Access to Social Benefits for EU Citizens’ (2018) 3(3) European Papers, 1187; N. Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52(4) Common Market Law Review, 907. O’Brien, ‘Civis Capitalist Sum’, p. 943. See Section 15.2.3 by Jesse and Carter. For example, the case of Case C‑140/12, Brey ECLI:EU:C:2013:565 follows the preDirective 2004/38, despite being decided in 2013; see Carter and Jesse, ‘The “Dano Evolution”’, p. 1187. Case C‑158/07, Förster ECLI:EU:C:2008:630; Case C-209/03, Bidar ECLI:EU:C:2005:169. Case C‑158/07, Förster ECLI:EU:C:2008:630, para. 55.

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years in order to be entitled to such a status.82 Contrary to the situation in Trojani, the applicants in question could not use residence based on national law in order to obtain a right to permanent residence based on European law, if they did not meet the conditions required under Article 7. In the infamous Dano case, the Court held that the applicant could not invoke the right to equal treatment under the Directive if she did not meet the conditions for legal residence in Article 7.83 In Alimanovic, the Court endorsed a German rule that stuck to the wording of the directive by only allowing workers to retain worker status for six months after becoming involuntary unemployed after less than one year’s employment, as this guaranteed ‘a significant level of legal certainty and transparency in the context of the award of social assistance . . . while complying with the principle of proportionality’.84 The Court repeated this reasoning in Garcia-Nieto, this time in relation to the limitation on social assistance during the first three months of residence as permitted under the Directive.85 These more recent cases emphasise the autonomous nature of the Directive. Applicants must comply with the Directive’s conditions if they wish to rely upon it, whether it be equal treatment under Article 24 or permanent residence under Article 16(1).86 This autonomy means that any residence based solely on national law is no longer relevant. Alimanovic and Garcia-Nieto demonstrate that the Court will presume that the Directive itself is proportionate, thereby removing the need for a case-bycase assessment based on Treaty provisions, as was commonly applied in earlier cases. More emphasis is placed on the ‘legitimate objective’ of protecting Member States against unreasonable burdens, rather than the ‘traditional’ objective of facilitating free movement.87 In fact, the cases allow Member States to pre-emptively restrict equal treatment from European citizens making use of their free movement rights, rather than automatically granting social benefits but then subsequently expelling EU citizens for becoming an unreasonable burden.88 This can effectively 82 83 84 85 86 87

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Joined cases C‑424/10 and C‑425/10, Ziółkowski & Szeja ECLI:EU:C:2011:866. Case C-333/13, Dano ECLI:EU:C:2014:2358. Case C‑67/14, Alimanovic ECLI:EU:C:2015:597, para. 61. Case C‑299/14, García Nieto ECLI:EU:C:2016:114, para. 49. Carter and Jesse, ‘The “Dano Evolution”’, p. 1191. D. Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52(1) Common Market Law Review, 25. D. Schiek, ‘Perspectives on Social Citizenship in the EU: From Status Positivus to Status Socialis Activus via Two Forms of Transnational Solidarity’, in D. Kochenov (ed.), EU

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mean that individuals that lack sufficient resources cannot claim equal treatment with respect to social assistance, but evidently they will also not need social assistance if they have sufficient resources.89 As such, certain social benefits, for example non-contributory jobseeker’s allowance, have become effectively inaccessible to EU migrants as Member States can always invoke the social assistance derogation under Article 24(2).90 In summary, the more recent decisions, whilst adhering to the wording of the Directive, have the potential to result in a more fragile system of free movement rights that is more exclusionary in nature than the previous regime. The reasons for this shift are hotly contested: whilst some argue that the Court is reacting to the current Zeitgeist by attempting to help quell the nationalist tide sweeping across Europe,91 and is engaging on a ‘swift dismantling project’92 of EU citizenship by abandoning its inclusionary approach and extending the law away from its market-based confines,93 others suggest that whilst there is clearly a plurality of reasons, recent decisions of the Court can also be seen as the adaptation to a new legal regime that came about with the adoption of Directive 2004/38, which departed from the previous teleological approach based on the Treaties, and towards a more textual, formalistic interpretation of the rules based on the Directive.94 Such a shift in approach can be justified as a natural progression towards a more comprehensive and codified system, adopted on the basis of the Union’s

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Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), p. 361. D. Kramer, ‘From Worker to Self-entrepreneur: The Transformation of homo economicus and the Freedom of Movement in the European Union’ (2017) 23(3–4) European Law Journal, 185. Carter and Jesse, ‘The “Dano Evolution”’, p. 1204; see also O’Brien, ‘Civis Capitalist Sum’, pp. 948–949; C. O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK’ (Oxford: Hart, 2017), pp. 53–56. U. Šadl and S. Sankari, ‘Why Did the Citizenship Jurisprudence Change?’, in D. Thym (ed.), Questioning EU Citizenship: Judges and Limits of Free Movement and Solidarity in the EU (Oxford: Hart Publishing, 2017), p. 109; see also C. O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v. United Kingdom’ (2017) 54(1) Common Market Law Review, 209–243. O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain’, p. 210. Nic Shuibhne, ‘Limits Rising, Duties Ascending’, p. 889; O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain’; E. Spaventa, ‘Earned Citizenship – Understanding Union Citizenship through Its Scope’, in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2017), p. 204. Carter and Jesse, ‘The “Dano Evolution”’, pp. 1195–1196.

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(albeit imperfect) democratic decision making process.95 However, it also has the effect of creating a more exclusionary system, particularly for those considered not to be economically active under the legal framework.

16.3.4

The Legal Consequences of Exclusion: Movement and Work without Protection under EU Law

The main consequence of this exclusionary system is that, at least legally speaking, there are more persons considered to be economically inactive than is factually the case.96 This means that there are persons currently or habitually engaged in employment that are not subject to the rules and protections under the free movement of workers provisions. There are two main situations in which this occurs. First, some part-time workers are actively engaged in employment, but do not meet the conditions necessary to be classified as a worker under EU or national law and thus considered ‘marginal’ workers. Second, some fixed-term workers may be out of work but for whatever reason do not meet the conditions necessary to retain worker status under the Directive, who could be called ‘intermittent’ workers. In both cases, these persons will lose their status as workers under EU law, but will retain a residual right to reside as jobseekers.97 Whilst they retain residence rights, they do not have the same material rights as workers, and are not entitled to a range of social benefits, most notably social assistance.98 This legal classification also places the marginal or intermittent workers in a strange situation: they must register with a jobcentre and, as a widespread obligation under national laws, provide evidence that they are seeking employment, and furthermore must have a ‘genuine chance’ of finding employment.99 It seems inappropriate to apply such rules to marginal workers since they are already engaged in employment. At best, the system is unnecessarily cumbersome and overly-bureaucratic. At worst, it is liable to exclude such workers from legal status and rights. 95

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M. van den Brink, ‘The Court and the Legislators: Who Should Define the Scope of Free Movement in the EU?’ (2019), in R. Bauböck (ed.), Debating European Citizenship (Cham: Springer, 2019), pp. 133–138. O’Brien, ‘Civis Capitalist Sum’, pp. 940, 955. Ibid., p. 975. O’Brien et al., Comparative Report 2015, pp. 21, 68–69. Art. 14(4)(b) Directive 2004/38. See also Case C‑67/14, Alimanovic ECLI:EU:C:2015:597, para. 56; Case C-292/89, Antonissen ECLI:EU:C:1991:80, para. 13–14.

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A further issue is that some Member States conflate the legal distinction between jobseekers as economically inactive citizens, by combining the tests of ‘genuinely seeking employment’ with that of ‘sufficient resources’, meaning that in order to meet this test the individual must be genuinely seeking employment whilst simultaneously not becoming an unreasonable burden on the host-Member State. This conflated test would seem to undermine the wording and meaning of the Directive. Under Article 14(4), it is stated that expulsion decisions, such as on the basis of being an unreasonable burden, cannot be taken against either workers or jobseekers genuinely seeking employment. Indeed, the unreasonable burden limitation is only a specific objective of Article 7, whilst the general objective of the Directive, which presumably includes Article 14(4)(b), is to facilitate the right to move and reside freely throughout the Union.100 This is a stark example of the introduction of Union citizenship, in particular the conditional residence it entails, undermining the pre-existing status and rights of workers. In relation to intermittent workers, under Article 7(3) of the Directive ex-workers will only retain worker status if they become involuntarily unemployed. This means that if the individual has left their job voluntarily, or simply does not comply with the Directive’s conditions such as registering as a jobseeker with an employment office, they will not retain the status of worker, or potentially any status, despite the fact that they may have worked for an extended period of time and have not claimed any social benefits.101 Moreover, in some Member States voluntary unemployment can result in the residence clock resetting, meaning they have to reside lawfully for another five years in order to obtain permanent residence.102 It is difficult to consider this application of the rules proportionate, given that EU citizens can sacrifice their entire residence status, including time spent towards gaining permanent residence status, simply because they either take a break in employment, or have not registered with a job centre and performed the ‘activating’ tasks often required under national law to retain that status.103 That being said, the Court has recently shown signs of moving towards a more generous interpretation of the sufficient resources condition, that may offer a 100

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Opinion of Advocate General Szpunar in Case C-93/18, Ermira Bajratari ECLI:EU: C:2019:512, para. 57. O’Brien et al., Comparative Report 2015, p. 18. O’Brien, ‘Civis Capitalist Sum’, p. 959; O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain’, p. 237. O’Brien et al., Comparative Report 2015, p. 68; see also Wright, ‘Welfare-to-Work, Agency and Personal Responsibility’.

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higher level of residence security. In Bajratari, it held that minor EU citizens had sufficient resources under Article 7(1)(b), even though these resources were obtained through their father’s income, which was earned ‘without a residence card and work permit’.104 The Court held that those ‘illegal’ resources supported the Union citizen ‘for the past 10 years without needing to rely on the social assistance system of that Member State’.105 This suggests that if an individual has supported him or herself through whatever means, and does not need to rely on social assistance, then their precise employment status, or source of their funds, should not undermine their residence status, at least insofar as they do not become an unreasonable burden on the state. Such an approach towards marginal and intermittent workers would certainly offer a more adequate safety net by providing for a residual legal base of residence outside of economic activity.

16.3.5

The Wider Consequences of Exclusion: Stigmatisation and Social Hierarchies

The exclusionary approach also contributes to a wider phenomenon, namely the changing attitudes relating to the value and status of those engaged in insecure and precarious work in society, as well as the system of free movement in the EU. Rather than being seen as filling important gaps in the labour market that Member State nationals prefer not to do, the free movement of workers is often perceived as inherently undercutting local workers and taking up precious resources that should be reserved for the native population.106 Furthermore, a migrant worker’s value to society is determined almost entirely by their economic status, and any problems they may encounter are presumed to be caused by their unwillingness to engage sufficiently on the market.107 Such attitudes result in more restrictive national immigration rules, which then leads to further exclusion of economically active migrants from national systems of solidarity and social rights. This makes them more reliant on the market for subsistence, commodifying their labour and potentially resulting in social exclusion.108 Paradoxically, this is liable to result in 104

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Case C-93/18, Ermira Bajratari ECLI:EU:C:2019:809; Opinion of Advocate General Szpunar in Case C-93/18, Ermira Bajratari ECLI:EU:C:2019:512, para. 70. Case C-93/18, Ermira Bajratari ECLI:EU:C:2019:809, para. 46. A. Jeannet, ‘Internal Migration and Public Opinion about the European Union: A Time Series Cross-sectional Study’ (2018) 34(1) Socio-Economic Review, pp. 4–6. Kramer, ‘From Worker to Self-entrepreneur’, p. 176. O’Brien, ‘Civis Capitalist Sum’, pp. 965, 975.

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the wage pressures, undercutting of social standards, and the general threat of social dumping that these migrants are accused of facilitating, resulting in a self-fulfilling prophecy.109 Lastly, the exclusionary system helps maintain a hierarchical form of citizenship, where individuals must ‘earn’ social citizenship status by way of either engaging with the market or at least committing to do so.110 In other words, the individual must submit to the logic of the market if they want to obtain the full set of rights that EU law offers.111 This undermines the notion of positive citizenship or receptive solidarity, that seeks to achieve equality through the positive allocation of rights such as welfare entitlement and actively seek to integrate individuals into society.112 However, such receptive solidarity and the positive allocation of rights, regardless of how long the migrant has been in the country, is unfeasible within the current political climate, especially if the migrant has limited participation with the market.113 Long-standing fears over the consequences of an unconditional system of free movement based purely on residence, such as ‘benefit tourism’, the de-legitimisation of national citizenship, and ultimately the retrenchment of welfare provision, is very real and a driver behind case-law and legislation,114 regardless of the empirical basis behind such claims. However, it does leave us with an exclusionary system that differentiates between ‘deserving’ and ‘non-deserving’ citizens, predominantly on the basis of the individual’s ability to participate in the market.

16.4

Conclusion

This chapter has sought to explain how the law is increasingly liable to exclude workers on the fringes of economic activity from legal status and 109

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Schiek, ‘Perspectives on Social Citizenship in the EU’; see also O’Brien, ‘Civis Capitalist Sum’, pp. 964–965. Kramer, ‘From Worker to Self-entrepreneur’, p. 185; see also D. Kramer, ‘Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies, 270–301; S. Mantu, ‘Concepts of Time and EU Citizenship’ (2013) 15(4) European Journal of Migration and Law, 447–464. F. de Witte, Justice in the EU: The Emergence of Transnational Solidarity (Oxford: Oxford University Press, 2015), pp. 82–83. See Schiek, ‘Perspectives on Social Citizenship in the EU’, p. 349; see also Case C-325/09, Dias ECLI:EU:C:2011:498. Dougan, ‘Expanding the Frontiers of Union Citizenship’. K. Hailbronner, ‘Union Citizenship and Access to Social Benefits’ (2005) 42(5) Common Market Law Review, 1258.

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rights under EU law. This is suggested to create a European Lumpenproletariat,115 a group of people who have no residence status or right to equal treatment.116 They cannot even rely on the Charter of Fundamental Rights as their lack of residence status means they fall outside the ‘scope’ of EU Law.117 This shift towards a more exclusionary system is caused by a number of factors. First, the nature of the proletariat itself is changing, as the standard model of employment is replaced by more flexible and insecure forms of work. This leaves migrant workers in a weaker position both in the labour market and also in terms of their legal status and rights. Secondly, the introduction of European Union citizenship does not offer the residual safety-net to EU citizens that was first envisaged. Instead, the system under Directive 2004/38 is conditional and ambiguous, and can exclude individuals most in need of protection. Most pertinently, the classification of marginal and intermittent workers as jobseekers, and the conflation of various tests designed for economic activity and inactivity, can result in many EU migrant workers being excluded from legal status and rights. Finally, the current perception of EU migrant workers and free movement more generally is liable to further exclude such individuals from legal protection. Paradoxically, this may result in the wage pressures and undercutting of social standards that causes such perceptions in the first place. Third, the introduction of EU citizenship and the resulting discussion of access to equal treatment as regards access to welfare and social benefits of economically not-active individuals has arguably led to stricter rules and more limited access to social advantages of workers under EU law. This is certainly a paradoxical and unintended consequence of the introduction of EU citizenship. 115 116

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Schiek, ‘Perspectives on Social Citizenship in the EU’, p. 360 D. Thym, ‘When Union Citizens Turn into Illegal Migrants: The Dano Case’ (2015) 40 (2) European Law Review, 249–262. Case C-333/13, Dano ECLI:EU:C:2014:2358, paras. 89–91; Nic Shuibhne, ‘Limits Rising, Duties Ascending’, pp. 914–915.

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