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PART I
Governance
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1
MIGRATION GOVERNANCE IN EUROPE
A historical perspective
Adam Luedtke
Europe will be forged in crises, and will be the sum of the solutions adopted for those crises.
Jean Monnet
Introduction
Past waves of European unification, like the slow unification of the American colonies (Egan 2015), occurred during moments of grave crisis. Just as Washingtonâs power grew most during the US Civil War and the Great Depression, the biggest gains in the power of the European Union (EU) came amid the oil shocks of the 1970s and the turbulent end of the Cold War. The dramatic refugee flows of the 1990s were perhaps the biggest upheaval in this latter period. Ethnic cleansing in places like former Yugoslavia sparked a crisis over the westward migration of refugees, which helped to launch the EUâs first cooperation on migration. From the early 1990s to today, migration crises have contained imperatives that gradually led EU member states to accept the need for a common EU response to foreigners arriving from outside the EU, particularly given the liberalisation of internal free movement. This chapter focuses on the evolution of EU-level policy towards immigration from outside the EU, as well as on the tensions it has exposed among member states and EU institutions. However, we cannot ignore the issue of intra-EU (Schengen) migration by EU citizens, since this situation facilitated the push for common external border controls and policies on admitting non-EU citizens.
This chapter will show how reluctant governments gradually decided to participate in migration policy cooperation in the form of security-focused initiatives offered by Brussels, which allowed for more effective responses to crises at the EUâs external frontiers. While the 1990s asylum crisis spawned innumerable predictions of EU doom and gloom, it actually led to the creation of a legal framework for common EU tools, which have arguably helped countries keep out large numbers of migrants. Although human rights advocates criticise the security orientation of EU migration policy, it is counterfactually true that by pooling sovereignty, Europe has averted far greater migrant inflows (and greater political backlashes) that would have otherwise faced individual nations.
Migration policy has been a tool of crisis management by the EU member states since the end of the Cold War. EU cooperation on immigration policy has advanced greatly since the 1990s, from the weak intergovernmental structures contained in the Maastricht Treaty (1993), to the binding, supranational system of immigration law finally implemented by the Lisbon Treaty (2009). From the initial intergovernmental steps towards harmonisation to the subsequent deepening of the EUâs institutional capacity to deal with immigration more collectively, EU cooperation on migration is a response to external pressures on Europe, such as refugees fleeing war, as well as to internal imperatives such as the single market, which mandates free movement inside the EU (requiring common entry rules). Again, this chapter focuses on immigration from outside the EU, and traces historically the evolution of common EU policy towards this type of immigration. Because the analysis is at the supranational level, and looks at the historical evolution of EU immigration policy harmonisation in Brussels, readers must look to other sources for more detail about individual member state preferences (Luedtke 2009), the effect of EU enlargement (Lavenex 2006) and the evolution of free movement law for EU nationals (Guiraudon 2000). This chapter traces the move away from âintergovernmentalismâ (EU member states making policy outside the legal framework of Brussels) towards âsupranationalismâ, which is defined as placing immigration law in Brussels under the sole agenda-setting powers of the Commission, majority voting in the Council, legislative co-decision by the European Parliament (EP) and judicial review by the European Court of Justice (ECJ).
Compared to other areas of EU policy (e.g. agriculture), common policies on the immigration of non-EU nationals took longer to develop, offered more variability of participation (some national opt-outs) and allowed more national discretion in implementation. Nevertheless, by 2010, full supranational policies were developed on asylum, border policy and several types of legal immigrants: family members, students and researchers, skilled migrants, seasonal migrants and long-term permanent residents. This (slow) progress has proven the conventional wisdom wrong.
As European governments began to identify mutual interests in areas related to immigration â especially areas of national security, such as border controls and illegal immigration â intergovernmental fora were developed to share data and strategy among the relevant branches of national governments. Accordingly, the evolution of supranational harmonisation cannot be understood without analysing intergovernmental initiatives pre-Maastricht. Analysis of this phase will show that even as member states placed immigration policy off limits to Brussels, they created conditions that would make a stronger role for Brussels too appealing to resist.
End of the Cold War and first refugee crisis (1986â1996)
With European integration moving forward in other areas, the member states began to experiment with ad hoc, intergovernmental cooperation on policies towards migrants from outside the EU, spurred on by the end of the Cold War and the arrival of large numbers of asylum-seekers.
It was not until the turbulent economic slowdowns of the mid-1970s that worried politicians began to gain political mileage by earnestly denying the reality of permanent settlement, in line with the new politics of xenophobic exclusionism that went hand-in-hand with economic recession and unemployment. During this period, European political elites began to pander to xenophobic politics â in response to their own declining legitimacy and electoral support â by proclaiming their nations to be âzero-immigrationâ vis-a-vis non-EU nationals. However, by pursuing this strategy of denial, governments left themselves unable to formulate coherent strategies to deal with the existence of settled and legally resident immigrant populations, as well as the consequences of future immigration flows (Layton-Henry 1990; Cornelius, Martin and Hollifield 1994). It was only the EU that would provide a response (albeit partial) by 2009. The first essential factor paving the way for convergence among the older member states (which by the 1970s had become permanent homes for settled labour immigrants) was the range of common humanitarian obligations faced by all labour-importing countries of northwest Europe, which blocked exclusionary attempts to limit both permanent settlement and the entry of new migrants.
Aside from the basic acceptance of guest-worker settlement, which (along with employer demand) allowed temporary labour populations to gain legal residence and avoid forced repatriation, two important humanitarian forces have fundamentally shaped EU immigration policy. These are: relatively robust adherence to international law on family reunification, which allowed colonial and guest-worker immigrants to bring family members (Joppke 1998); and adherence to the right of political asylum (Freeman 1995) in the face of international conflicts in the EUâs neighbourhood.
The most important facet of immigration cooperation in the 1980s came out of a liberalising move on the economic side: the single market and its requirement of free movement, which created an irreversible linkage between immigration and the drive for a unified Europe. In 1986, the Single European Act legally codified and institutionalised Brusselsâ policy authority over EU member states to new levels. The Act succeeded in removing mobile EU workers from the limits of national immigration regimes and placing them firmly under the EU legal framework as elements of the single market. That move gave birth to perennial confusion as to who the âmigrantâ in Europe is. It also pushed for a harmonised policy towards intra-EU movers, which does not fall under national state prerogatives. With internal movement increasingly liberalised in EU law, member states had increased incentives to cooperate on the external admission of non-EU nationals; for example, a migrant entering Italy would now face less control and restrictions in moving to the Netherlands. In this way, internal free movement policy, although it deals with EU citizens, has always had an indirect linkage with driving the harmonisation of policies towards non-EU immigrants.
Given the new spirit of internal liberalisation and accompanying institutional activity, harmonising restrictions on non-EU immigrants was prioritised quickly. It stemmed from the security panic over asylum-seekers in the 1990s, as dire predictions of ex-communist refugee swarms grabbed headlines across the continent (Rogers 1992; Soysal 1994; Den Boer 1995; Santel 1995; Weiner 1995; Mitchell and Russell 1996). This amplified response created a paradox for immigration policymaking, since the new security threats made cooperation more difficult, and yet more necessary. Although member states were obsessed with national sovereignty and border controls, it was also clear that the immediate goal of harmonising border controls at the EU level was crucial to the political stability of post-Cold War Europe, and hence crucial to protecting national sovereignty itself. The national interests of the (then 12) EU member states coincided quite readily on security issues, which allowed an increasingly systematic discussion of harmonisation. The intergovernmental frameworks of the time emphasised keeping national sovereignty as intact as possible through protection of borders. One example is the substantial progress made by Trevi Group in the late 1980s in cooperating on cross-national information sharing and law enforcement. Mitchell and Russell (1996) framed the paradox as follows: âpartial loss of legal sovereignty is the price that must be paid for maintaining a measure of state autonomy in the face of mounting migrationâ (p. 58).
Consequently, the EUâs first intergovernmental organisation devoted specifically to immigration, the Ad hoc Immigration Group (AHIG), was established in 1986. The AHIGâs mandate represented the ongoing obsession with security issues (Waever 1993; Huysmans 2000) and reflected the priority of the time: strengthening EU external borders to keep pace with the reduction of internal borders among the 12 members. The AHIG mandate covered: (1) visa policy, including a common list of countries whose nationals would require visas to enter the EU; (2) improving external border controls and evaluating implementation of internal controls; (3) aiding implementation of free movement in a security-conscious way; and (4) the harmonisation of political asylum policies, focusing on eliminating false or duplicate asylum claims (aka âasylum-shoppingâ).
Although this emphasis on control led to criticisms of âFortress Europeâ, a new era of cooperation was unfolding institutionally. The Commission was given a place at the table but its role was left ambiguous, merely to âbrokerâ between member states (Ugur 1995). And with such weak institutional grounding, the eventual establishment of full EU competence over the AHIG did not seem likely. Yet some were optimistic. Philip (1994) saw the creation of the AHIG as launching the harmonisation of EU migration policy and necessarily giving the central institutions (Commission, EP and ECJ) a role in this process, however limited. âWhile outwardly denying in the 1980s that there was any need for an EC-wide immigration policy, governments ⌠laying the foundations for just such a policy ⌠continued to inch their way towards an ever-closer union of their immigration policiesâ (p. 174). History would vindicate this view in 2009 when the Lisbon Treaty instituted full EU competence over migration policy, with sole right of initiative for the Commission, majority voting in the Council, co-decision (veto) power for the EP and full ECJ jurisdiction.
The first concrete step towards harmonising immigration policy was the Dublin Convention on political asylum, which came out of the AHIG in 1990, and was signed by all 12 member states. The Dublin rules, which formed the foundation for todayâs common EU asylum system, codified common provisions for eliminating asylum âabuseâ by determining which state was responsible for examining an application. By demanding that refugee claims be heard in the first signatory (âsafeâ) country of arrival or transit, this enticed even reluctant members such as the UK into eventually joining most of the EUâs common asylum system, based on the Dublin Conventionâs âsafe third countryâ rule and a biometric database to eliminate fraud and âasylum-shoppingâ.
Member state unwillingness to commit to increased harmonisation, given the practical shortcomings of the current ad hoc groupings, was put to the political test leading up to the 1992 Maastricht Treaty. The pre-Maastricht Intergovernmental Conference (IGC), charged with hearing proposed revisions to the Rome Treaty, provided a new forum in which supranationalists could air concerns over perceived shortcomings in the nature and extent of harmonisation thus far. The only political solution, in the eyes of the supranationalists, was the establishment of full EU competence over immigration. Accordingly, the Benelux countries, with Commission support, proposed amendments to the Rome Treaty that would bring all various intergovernmental groupings into the EUâs institutional framework. This proposal was fiercely opposed by the UK, Denmark and Ireland, who expressed clear preference for the status quo.
This intergovernmentalist opposition was incorporated into a compromise treaty by the Luxembourg Presidency at the 1991 IGC, which assuaged Eurosceptic worries by creating a split institutional framework under which immigration and law enforcement were put in a separate intergovernmental âpillarâ of EU law, instead of in the âfirst pillarâ of ânormalâ EU law and institutions. Although this âpillarâ grouping for immigration seemed more coherent, it was still intergovernmental (and therefore not subject to Commission, EP or ECJ control). Importantly though, intra-EU mobility fell under the first pillar, together with the internal market, burying the hopes of some Eurosceptics that this category of migrants could be controlled nationally. In 1992, intra-EU movers were not perceived as a significant threat. The Maastricht Treaty sealed the two-tier approach to non-nationals in the EU and to a large extent removed the question of EU citizens from this debate.
The Commission continued to work on its own proposals for full competence over non-EU immigration, despite apparent member state unwillingness to give up on intergovernmentalism. Part of this new attempt at cooperation was the Commissionâs decision to limit calls for harmonisation to the areas of control and restrictions, a familiar strategy for appeasing member state objections. In its communications, the Commission urged the ratification of the Dublin Convention, along with other measures of asylum policy harmonisation, in order to meet the widely shared goals of streamlining asylum claims and eliminating asylum abuse. It was primarily because of this renewed push by the Commission towards further harmonisation (albeit of a fundamentally restrictionist variety), that a process of further momentum was launched. The most important step in this process was the AHIGâs submission of an âAction Planâ to the 1991 European Summit in Maastricht. This Action Plan took into account the Commissionâs wishes by stressing the need for harmonisation across all areas of immigration policy. However, the concrete institutional impact of the Maastricht Treaty was minimal, given its limited reorganisation of immigration-related policy frameworks. The âLuxembourg compromiseâ proposal finally accepted for i...
