Managing Migration

Civic Stratification and Migrants Rights

Lydia Morris

• Publisher: Routledge
• Year: 2003
• Print ISBN:
  9780415167062
• eBook ISBN:
  9781134705566
• Topic: Social Sciences
• Subtopic: Immigration Policy
• Index: Social Sciences

Nation States now increasingly have to cope with large numbers of non-citizens living within their borders. This has largely been understood in terms of the decline of the nation state or of increasing globalisation, but in Managing Migration Lydia Morris argues that it throws up more complex questions. In the context of the European Union the terms of debate about immigration, legislation governing entry, and the practice of regulation reveal a set of competing concerns, including: *anxiety about the political affiliation of migrants *a clash between commitment to equal treatment and the desire to protect national resources *human rights obligations alongside restrictions on entry.
The outcome of these clashes is presented in terms of an increasingly complex system of civic stratification. The book then moves on to examine the way in which abstract notions of rights map on to lived experiences when filtered through other forms of difference such as race and gender. This book will be essential reading for students and researchers working in the areas of migration and the study of the European Union.
Lydia Morris is Professor of Sociology at the University of Essex.

1 A cluster of contradictions

The politics of migration in the European Union

The European Union has been cited by some as a paradigm case in the unfolding of a post-national or even global dynamic. Giddens (1995), for example, has argued that the EU stands as both a response to and an expression of globalisation, whereby member states relinquish some aspects of sovereignty with a view to promoting national interests – an expression of the dialectical nature of globalisation. Soysal (1994) also sees Europe as a key reference point for post-national membership, describing the EU as ‘the most comprehensive legal enactment of a trans-national status for migrants’ (p. *). She is referring here to free movement and the attendant rights conferred on nationals of all member states (and additionally those of the EEA), though not yet extended to TCNs resident in one of the member states.¹ In fact, in tandem with efforts to establish a single market, we find that much of the collaborative effort with respect to migration has focused on control and that this, as much as the expansion of migrants’ rights more generally, has been at the heart of post-national developments. It is in this context that a harmonised European immigration regime is seen as a necessary part of moves towards a free market (see Sassen, 1998).

Multi-state collaboration

The creation of a law-making body which stands above the member states, whose laws have direct effect and override any inconsistencies with domestic law, is perhaps the strongest manifestation of a post-national (rather than global) dynamic. Yet the process of establishing a single market met with resistance at various stages from the member states, and there have been a number of significant moments in negotiating a balance. Concern about sovereignty with respect to migration was initially reflected in the ‘three pillar’ structure of the treaty on European Union (the Maastricht Treaty), which placed Justice and Home Affairs outside Commission competence so that action in the field of migration was negotiated in inter-governmental fora on the basis of unanimity. Such caution may seem surprising, given broad agreement on the need for harmonisation of admission policies, a common approach to illegal migration, a policy on labour migration and a common position on third country nationals.² However, implicit in this programme of work was the acknowledgement that a frontier-free zone carries with it a series of implications for immigration, as in practice the external boundaries of Europe become the boundaries for each individual member state.

The Amsterdam Treaty (1997) marks a fundamental change in previous arrangements by moving immigration and asylum from the third pillar of inter-governmental negotiation to the first pillar of community competence, under a new Title IV of the EC Treaty (as amended by the Amsterdam Treaty). The move was opposed by Denmark, who opted out completely, and by Britain and Ireland, who negotiated a selective opt-in and also secured exclusion from the requirement to abolish controls at internal borders. The remaining thirteen member states are committed to the latter development, as expressed in the incorporation of the Schengen Acquis into the Amsterdam Treaty (Statewatch, 1997). Yet in so far as ‘free movement’ has been established, it operates alongside a continuing emphasis on external control in European policy and debate, and the familiar formula of combating illegal migration while ensuring integration for those legally present is repeated in the related Council Action Plan (European Union Council, 12028/1/98 Rev 1).

Though the Amsterdam Treaty explicitly embraces the European Convention on Human Rights (Article F(2)), there has been something of a shift in terminology, with the result that the domain of Justice and Home Affairs under the Maastricht Treaty has now become an area of ‘Freedom Security and Justice’. Indeed, the associated programme of measures to be adopted within five years (that is, by May 2004) includes a set of control-related issues, which have been among the first to reach agreement (Immigration Law Practitioners’ Association, 2001). Areas of continuing debate are minimum standards of reception, qualification and procedures for refugees; conditions of entry and residence for TCNs (including family unification); and the conditions for their residence or employment in other member states. There is as yet no commitment to extending full rights of free movement to this group (beyond permitting three months visa-free travel), though the issue is addressed in a proposed directive from the Commission (European Commission, 2001b). Overall, Peers (2000: 105) describes the treaty as a missed opportunity for securing the position of resident TCNs which ‘damages the internal market, infringes the basic principles of equality, and contributes to indirect racism’. These issues are explored below, in the context of the broader question of quite how post-national Europe really is.

A frontier-free market

The principle objective of the European Union has been the realisation of a Common Market, envisaged in the Treaty of Rome (1957) and given urgency by the Single European Act (SEA) (1986) with its commitment to establish an internal market for goods, capital, services and persons. The act immediately raised two questions which proved contentious: what categories of person were to be granted free movement (and with it the right to work and reside); and, in the absence of internal frontiers between member states, where should ultimate authority over entry to the national community lie?

The first of these questions was answered restrictively when the European Court of Justice (ECJ) interpreted ‘persons’ as meaning ‘workers of the Member States’, third country nationals being dealt with in secondary legislation. The related question of authority was addressed by a General Declaration appended to the SEA to the effect that nothing in its provisions ‘shall affect the right of the Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries’ (Handoll, 1994:11.41). This right was also confirmed in a much documented decision by the ECJ in 1987 which upheld a challenge to the Commission’s proposal for prior communication on migration issues, brought by Germany, France, The Netherlands, Denmark and the UK (Hoogenboom, 1992; Handoll, 1994). This judgement has been largely superseded by the Amsterdam Treaty, and in fact the failed Communication of 1985 has resurfaced in updated form as part of the current drive for harmonisation (Migration News Sheet, August, 2001). However, while the Amsterdam Treaty has changed the legal framework for dealing with immigration and asylum, there is nothing to suggest that control will not continue to be at a premium.

The right for citizens of member states to work and reside in other member states has now been established, and extended to EEA countries, with accompanying relaxation of national control. Free movement between the relatively affluent countries of Europe is viewed as necessary for the establishment of a single market, but ease of entry and stay for TCNs has been much less acceptable. The fear has been that generous policies or lax control on the part of one member state could rebound on the whole Community, and hence the logic of the single market has been restricted from the outset. This issue derives its significance from the fact that there are at least 10 million legally resident TCNs in the EU (Salt et al., 1994), and an unknown number who are undocumented.³ In March of 2001, the Commission proposed a directive on resident TCNs that would grant free movement after five years, but in terms which are hedged with caution (see p. * below).

The diverse origins of TCNs in Europe reflect the colonial ties of the member states, the sources of their guestworkers and the range of refugee-producing regimes throughout the world. Thus steps towards the realisation of a frontier-free Europe immediately set up a series of tensions such that a high level of mutual trust was required between Member States with regard to their immigration policies and practices.⁴ In fact, border controls between certain countries have sometimes been reintroduced for this reason, as for example between Italy and Germany. At a practical level problems stem from the impossibility of exercising complete and effective control over entry to the EU. More significantly, the problem of control differs according both to the physical nature of the border and to its socio-economic significance, the southern and eastern borders being clearly the most vulnerable to clandestine entry. Among the reasons for concern have been the national character of labour markets and their associated welfare systems, and the significant differences which exist in this respect between member states.

To date, European workers have been the principle focus of the drive for free movement, with entry and residence for non-workers initially conditional upon proof of adequate resources. Treatment of third country nationals has been very much more restrictive, granting only three months visa-free travel in another member state: ‘Member countries do not want them to demand work in their countries because until now they did not have any say in the way the entrance policies of the other Member countries have worked’ (House of Lords, 1992, Commission evidence: 9). The Commission has consistently argued against this restriction, and the white paper on social policy (European Commission, 1994a), for example, made a case for extending the freedom to work and reside to legally resident non-EEA nationals. As labour supply supersedes unemployment as a pressing problem there may be growing support for this view. We have noted there is now a Commission proposal on this issue – from which Britain and Denmark have opted out.⁵

The logic of welfare?

The key sociological question concerns the sources of resistance to extending free movement, or conceding ease of entry, and for some writers this is predominantly an issue of national resources. Thus Freeman (1986:51) has argued that the welfare state is necessarily bounded; that ‘national welfare states cannot co-exist with the free movement of labour’; and that in establishing a principle of distributive justice dependent on membership of a limited community, the welfare state necessarily departs from market principles. Of course this constraint can be overridden by other principles, as, for example, when a strong argument for ‘membership’ is made,⁶ raising other questions about the criteria for inclusion and exclusion. Broadly speaking, however, welfare provision has developed hand in hand with the nation state and has traditionally required the exclusion of less affluent peoples. As Freeman argues, this has been the central concern in control over entry to the national territory, a concern the ‘single market’ has slowly had to address.

Welfare provisions serve at least two purposes: to provide for needy categories of the population, and to guide, indirectly, the dynamics of the labour market. Thus the setting of assistance benefit is likely to affect the minimum acceptable wage, while the conditions for receipt of such benefit are always set with an eye to work enforcement. Take, for example, the increased emphasis in the UK on proof of job search and tests of availability. Here the policy preference is to force the unemployed into low-paid work rather than allow employers to recruit migrant labour from outside the welfare community, though this strategy can rebound on other member states as the unemployed or low paid seek opportunities elsewhere. There was, for example, resistance in Germany to an influx of migrant workers (many of them British) undercutting local labour (Guardian, 2 October 1995; 21 March 1996), while in France, British sub-contractors have been prosecuted for flouting French and European labour laws (Guardian, 3 December 1996). Trans-national migration thus threatens the national capacity to regulate both the labour market and the welfare system. Though the Posted Workers Directive⁷ now requires observation of the host state’s employment rules – a requirement which arguably conflicts with the market principle underpinning the philosophy of European integration (see O’Leary, 1995) – informal practices are an obvious means of evasion.

The welfare state/labour market package as it stands is still, to a considerable degree, a bounded national relationship and access to social provisions remains a contentious area. So, for example, entry for residence as divorced from employment requires that EU citizens and their dependants should carry medical insurance and have sufficient resources not to be a charge on the state (Council Directives 90/364/EEC, 90/365/EEC, 93/96/EEC). The exercise of ‘free movement’⁸ has therefore excluded a certain category of people who may well hold EU citizenship. This was made clear in a European Commission white paper on social policy (1994a:35) which states, with reference to the rights of EU citizens to move and reside freely: ‘In reality, certain persons without resources are hindered from exercising this right, in particular unemployed people without benefits, those who live on social benefits and certain disabled people, and gypsies, who encounter practical and administrative difficulties in residing in the Member State of their choice.’

These constraints could gradually be eroded at the level of the single market and a recent decision by the ECJ ruled – in the case of a student – that EU citizens can rely on the prohibition of discrimination on the grounds of nationality in claiming access to non-contributory benefits (Migration News Sheet, October 2001). However, the problem is by no means new and a likely response is either the tightening of eligibility rules for benefit, or heightened requirements for proof of sufficient resources. In 1996, in an attempt to prevent benefit claims from EU nationals in the course of seeking employment, the British social security system introduced a ‘habitual residence test’(Allbeson, 1996), designed to prevent what was termed ‘benefit tourism’ (Guardian, 14 February 1996). This was despite an earlier ruling by the ECJ (Case C – 292/89 Antonissen (1991) ECR 1-745; see Handoll, 1994:110-11) granting a ‘reasonable’ period of jobsearch, though even EU citizens have been requested to leave if they become longterm dependent, a practice which has itself been recently called into question.⁹

While the detailed operations of the single market slowly unfold under Community Law, the position of TCNs has been governed principally by domestic law, which commonly denies welfare rights until full residence has been achieved. In fact, it is argued by some that labour migrants are net contributors to the welfare state (e.g. Carens, 1988) because of the limited circumstances under which they can make a claim. The early stages of residence are commonly tied to employment, or at least are conditional on not being a charge on the state, while clandestine migrants in particular are likely to pay in more than they can ever take out as claimants or service users. Indeed, the Commission’s proposed directive on long-term resident TCNs would grant free movement but impose exclusions from social support: ‘to ensure that the person concerned does not constitute a burden on the member state where they exercise the right of residence’ (Migration News Sheet, April 2001). Continuing concern over welfare resources is also apparent in debate about the appropriate system of support for asylum seekers (see chapters to follow), while a claim for social assistance by the family dependent of a TCN can in many cases mean non-renewal of their residence permit (Joint Council for the Welfare of Immigrants, 1993). Thus, in Baubock’s terms: ‘The more substance the internal rights of citizenship acquire, the more important it seems to police the frontiers of the state’ (1991:3), or at least to limit access to those rights.

Trans-national rights

Nevertheless, despite national resistance, and with little overt adjustment of the ideal, the nation as a territorial unit of cultural and civic membership has been challenged by shifting populations and differing dimensions and degrees of inclusion. In fact, the continuing migrant flows into Europe have been echoed, over the same period, by the emergence of trans-national conventions for asserting the rights of migrants which many feel in themselves pose a challenge to national autonomy. These conventions are not part of the legal framework of the European Union, but are rather international commitments which have been entered into by individual member states (see Peers, 2000: 103). The most widely known derive from the human rights machinery developed in the aftermath of World War II, though there are many other less celebrated organisations and conventions asserting the rights of resident foreigners (see Soysal, 1994).

An impressive array of international instruments laying down standards for the protection of migrants has emerged from such organisations – for example, from the United Nations (UN), the International Convention on the Protection of the Rights of all Migrant Workers and their Families (1990); from the International Labour Organization (ILO), the Convention on Migrant Workers (1975); and from the Council of Europe, the European Convention on the Legal Status of Migrant Workers (1977). The impact of such instruments is not always as powerful as might appear, since they depend on ratification by individual...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Abbreviations
• Introduction
• 1 A Cluster of Contradictions
• 2 Rights and Controls in the Management of Migration
• 3 The Ambiguous Terrain of Rights
• 4 The Shifting Contours of Rights
• 5 Stratified Rights and the Management of Migration
• 6 Gender, Race and the Embodiment of Rights
• 7 Managing Contradiction
• Notes
• Bibliography