Migration, Work and Citizenship in the Enlarged European Union

Samantha Currie

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754673514
• eBook ISBN: 9781317096245
• Topic: Law
• Subtopic: International Law
• Index: Law

Drawing upon socio-legal research, this insightful book considers labour migration within the context of ('eastward') European Union enlargement. Specifically, this volume explores the legal rights of accession nationals to access employment, their experiences once in work and their engagement with broader family and social entitlement. By combining analysis of the legal framework governing free movement-related rights with analysis of qualitative data gained from interviews with Polish migrants, this volume is able to speculate on the significance the status of Union citizenship holds for nationals of the recently-acceded CEE Member States. Citizenship is conceptualised not merely as rights but as a practice; a real 'lived' experience. The citizenship status of migrants from the CEE Member States is shaped by formal legal entitlement, law in action - as it is implemented by the Member States and 'accessed' by the migrants - and social and cultural perceptions and experiences 'on the ground'.

Chapter 1

Introduction

In the early part of the twenty-first century, the European Union’s membership has transformed from a club of 15 ‘western’ European countries to an alliance of 27 that also encompasses ten post-communist central and eastern European (CEE) countries. For a significant period of time during the twentieth century these CEE countries sat far-beyond the political reach of the ‘western world’. The iron curtain detached east from west, not only from an ideological perspective, but also physically: movement of persons between the two regions of Europe was severely restricted.

With the accessions of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia and Slovakia (along with Malta and Cyprus) in May 2004, the EU’s population increased by 28 per cent to more than 500 million people (Vaughan-Whitehead 2003, 31). In January 2007 this figure rose by a further 29 million as the EU enlarged again to take in Romania and Bulgaria (Lanzieri 2007, 1). Thus, the fifth and sixth rounds of enlargement are regarded as significant due to the scale on which they occurred. Clearly though, these rounds of expansion also hold much broader symbolic and political significance for the post-communist CEE countries involved. For example, some of the discussions surrounding the 2004 enlargement in particular were couched in rather emotive terms about the ‘return’ of these eight CEE countries to their rightful place in Europe (Kengerlinsky 2004; Maas 2002).

Despite the positive emphasis in the literature on the unification of Europe, the existence of various transitional arrangements in both the 2003 and 2005 Treaties of Accession1 has meant that, in reality, accession did not occur overnight, but instead, is being staged over a number of phases.2 One of the most notable areas subject to such initial phasing-in is the free movement of persons. The 15 established Member States (the EU15)3 are entitled to derogate from the acquis on the free movement of workers in respect of nationals of the eight 2004 CEE accession states (the EU8), and nationals of Romania the Bulgaria (the EU2), for a maximum period of seven years.4

The existence of transitional mobility restrictions contradicts the EU’s established policy of promoting internal labour migration. The desire to encourage free movement has been the driving force behind long-established legal developments, such as the mutual recognition of qualifications and the extension of social rights and family reunification entitlements to EU nationals exercising rights of free movement. Traditionally, such initiatives have been adopted as part of the overriding economic objective to establish a Common Market with mobile factors of production.5 More recently, however, there have also been moves at EU level to highlight the professional, cultural and linguistic benefits of working in another Member State. For example, the European Commission designated 2006 the European Year of Workers’ Mobility (European Commission 2005c) and put in place various schemes and projects designed to emphasize the benefits of geographic mobility and to provide key, practical information about rights to work abroad.6 It is perhaps somewhat ironic that such positively-framed mobility projects have been put in place during a period within which a significant proportion of EU nationals experience free movement restrictions.

The primary aim of this book is to explore the legal status and experiences of migrant workers from the CEE accession states during the operation of the transitional arrangements. Furthermore, as the right to free movement is closely associated with the notion of citizenship under EU law, an objective is to analyse the relevance of the Union citizenship status for this group.7 Previously, academic research has analysed the position and rights of those EU nationals who have exercised mobility rights flowing from the free movement provisions to work in another Member State (Golynker 2006; Ackers 1998).8 Similarly, the status of third-country nationals in the EU, particularly following the introduction of the Treaty of Amsterdam which inserted Title IV on ‘visas, asylum and immigration’ into the EC Treaty, is an issue that has received the attention of academic researchers (Kostakopoulou 2002a, 2002b; Barratt 2003; Guild and Harlow 2001).

During the transitional periods,9 CEE accession nationals are clearly not granted complete access to the rights of free movement accorded to ‘ordinary’ internal EU migrants; therefore, the citizenship status they occupy is not immediately analogous to that of EU15 nationals. Neither is the status of EU8 and EU2 nationals equivalent to that of most third-country nationals as they are, as nationals of EU Member States, citizens of the Union in spite of the imposition of transitional mobility restrictions. Consequently CEE accession migrants occupy a unique status under Community law.10 They may be Union citizens by formal definition but, in practical terms, their repertoire of rights is limited. The ability to move as a worker to another EU Member State is one of the key free movement rights available to those with Member State nationality. As a result of the limitations placed on this right by the transitional arrangements, the recent ‘eastward’ enlargements provide an interesting lens through which issues of labour migration and the citizenship status of migrant workers can be examined.

The following chapters explore CEE accession nationals’ legal rights to access work in the EU15, their experiences of such work, and their access to and engagement with broader family and social entitlement during the transitional period(s). In that sense, citizenship, is conceptualized not merely as a bundle of rights but as a practice; a real ‘lived’ experience. The citizenship status of CEE accession migrants is shaped by formal legal entitlement, law in action (as it is implemented by the Member Sates and ‘accessed’ by the migrants), and social and cultural perceptions and experiences ‘on the ground’. The interaction of this group with the various aspects of legal provision is measured against the position of EU15 migrants (and by extension migrants from Malta and Cyprus) who are not subject to any transitional mobility restrictions. The juxtaposition of formal legal status and practical experience throughout the various chapters aims to provide a representation of the overall status and employment experience of CEE accession migrants. In adopting this approach, however, the aim is not only to critique the specific status granted to the migrants, but also to reflect more generally on the notion of Union citizenship as expressed formally in the EC Treaty. In particular, the discussion challenges the perception of citizenship as a universally applicable concept and demonstrates how certain types of free movement, exercised by particular kinds of migrant citizen, are valued to a greater extent than others.

Empirical Research

The research on which this book is based was of a socio-legal nature and, therefore, combined analysis of the formal legal framework that shapes the status of CEE accession migrants with empirical investigation of the migrants’ practical experiences. As yet, there is no agreed definition of the term socio-legal, but it is generally understood to refer to approaches that are multi or interdisciplinary in nature:

Our theoretical perspectives and methodologies are informed by research undertaken in many other disciplines. Traditionally socio-legal scholars have bridged the divide between law and sociology, social policy and economics (Socio-Legal Studies Association).11

Essentially, socio-legal scholars endeavour to take legal study outside of the legal ‘office’ to investigate ‘law-in-society’ (Bradshaw 1997, 99). Importantly, this often involves evaluating the law and its operation by applying some form of data collection techniques to the phenomenon under consideration.

The research that informs this book was carried out between 2004 and 2007 and focused specifically on the status of EU8 migrants in the aftermath of the 2004 enlargement. This book also incorporates, where appropriate, the accession of Bulgaria and Romania and particular considerations pertaining to the 2007 enlargement. An empirical element is incorporated to both complement and contextualize the more black letter exploration of the law by providing some tangible examples of how the law shapes the migration process and experience.

In order for an in-depth picture of the formal legal status of CEE migrants to emerge the analysis was carried out on a number of levels, taking into consideration the various layers of regulation impacting on the free movement rights of the migrants. At the supranational level, the Treaties of Accession and the detail of the transitional arrangements were the obvious focal point. In order to consider this in a more meaningful context, the details of the transitional rules were analysed in the light of provisions of EU law on free movement and citizenship that govern the rights of EU nationals generally. At the national level, the EU15 Member States’ implementation of transitional arrangements was considered. Such domestic implementation also has a significant impact on the extent of CEE accession migrants’ entitlement, experience and status, as the design of the transitional arrangements bestows a considerable degree of discretion upon the implementing Member States. The research, while adopting EU law as a wider frame of reference, focused on the specific context of the UK legal framework put in place to regulate EU8 migration following enlargement. In this respect, the research represents an attempt to challenge and move beyond the media-projected images of EU8 workers (Polish in particular) that have dominated the debate in the UK since the decision was taken by the government to extend labour market access rights to EU8 nationals in 2004.12

The empirical research focussed on labour migration from Poland to the UK and the experiences of Polish migrants. Therefore, the empirical research essentially provided a case study of Polish migrants who worked in the UK in the post-accession environment. Throughout the chapters of this book, findings from the case study on Polish workers complement the legal analysis which applies more broadly to the wider category of EU8 migrant workers (and, in some instances, also to migrant workers from Romania and Bulgaria). Semi-structured, qualitative interviews and focus groups were conducted with Polish migrants working in the UK in 2004 and 2005. These respondents had either moved within the year leading up to the date of the 2004 enlargement (that is, from May 2003) or following Poland’s accession in May 2004. In order to add a cross-national element to the empirical work, and to gain a greater understanding of the complexities relating to post-accession migration from Poland, further qualitative interviews were carried out in Poland (in August 2005) with return migrants who had moved to the UK (during the same time period as those workers mentioned above) but who had since returned to Poland.

The research supporting this publication aimed to gain a (qualitative) insight into the phenomenon of post-EU enlargement migration from the perspective of the migrants themselves. The objective was to reveal some of the human consequences of migration that are often hidden behind migration statistics. Migration research has largely been dominated by studies that rely on statistical data. Indeed, Singleton (1999, 156) has pointed to the ‘positivist imperative’ whereby researchers continue to favour a quantitative approach over others. This study attempted to ‘get behind the numbers’ and look at the impact of the legal framework(s) on the ground from the perspective of those the law seeks to address.

Notwithstanding the overall commitment to a qualitative approach, the value of quantitative-based analyses is also recognized and statistical secondary data is utilized throughout the book to contextualize the more qualitative examples. The main secondary source relied on in this respect is the Accession Monitoring Report which details the statistical data connected to the operation of the UK Workers’ Registration Scheme (WRS). The report has been published quarterly by the UK government since the May 2004 EU enlargement and provides details about those EU8 nationals that have registered as workers under the WRS.13 It has been an invaluable source of information on the employment activity of EU8 migrants across various occupations (including hours of work and wages), the characteristics of the EU8 workers in the UK (in terms of factors such as age, gender and percentage of those with dependents in the UK), and the extent to which EU8 workers have sought access to certain welfare benefits in the UK. In spite of the value of this information there are certain methodological features of the data included in the Accession Monitoring Report that need to be acknowledged. First, the data covers only those EU8 workers who have formally registered their employment on the WRS since 1 May 2004. It does not include within its ambit the (unknown) number of EU8 migrants who have taken up work in the UK without fulfilling this registration requirement. Neither does it measure the number of EU8 migrants who do not fall within the category of ‘employed’ (such as the self-employed). It does, however, include some students as EU8 migrant students who work part-time are not exempt from the registration requirement. Furthermore, the data from the WRS is by no means an estimate of net migration to the UK from the EU8 Member States as it only presents a cumulative figure of those that have applied to the scheme from the date of accession. It does not measure, to any extent, the outflow of EU8 migrants as there is no requirement for those who leave to ‘de-register’ from the scheme.

The findings from the empirical work are drawn upon throughout the book to highlight particular experiences of Polish migrant workers in the UK and to emphasize how the legal framework and the formal status they are granted shapes these experiences. This sample does not claim to present a representative picture of the overall experience of the population of post-accession Polish workers in the UK, but to provide an interesting and rich qualitative insight into the experiences of some of those that moved in the aftermath of the 2004 EU enlargement. Furthermore, some broader conclusions can be drawn when the experience of the sample is coupled with the available and relevant statistical information.

In terms of how the research progressed, the empirical work preceded the analysis, or ‘theory building’, at the conceptual-abstract level; therefore the reasoning was inductive in nature (DeVaus 2001, 6). The qualitative interviews did not set out to ‘test’ any predetermined theory regarding the impact of the EU legal framework on free movement and migration. Rather the data was used to construct a theory; the theory was ‘grounded’ in the data collected. Glaser and Strauss (1967), the pioneers of grounded theory, stress the importance of developing analytical interpretations of data throughout the research process and of refining the developing theoretical analysis. Important facets of the grounded theory approach include simultaneously collecting and analysing data, coding, using comparative methods, memo writing and sampling to refine the emerging theoretical ideas:

Grounded theory methods do not detail data collection techniques; they move each step of the analytic process toward the development, refinement, and interrelation of concepts. (Charmaz 2003, 251)

A demonstration of how this grounded approach was applied in the present study is provided by the use of purposive or theoretical sampling. For example, during the interviews in the UK many of the migrant respondents mentioned that they had enlisted the services of an employment agency to help them find work. As a result, the decision was taken to also interview representatives from a small number of such agencies in Poland. These interviews were designed to explore further the role played by agencies in facilitating the movement of Polish nationals. ‘Key informant’ interviews were carried out at various points throughout the course of the research when it was felt that the research could benefit from such additional input. One such interview was with a manager of a transport company that had recruited a high number of Polish workers; another was with a legal practitioner with experience of advising migrants from the CEE region; and a further key informant h...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• List of Cases
• List of UK Legislation
• List of European Union Materials and Community Legislation
• Preface
• Acknowledgments
• List of Abbreviations
• 1 Introduction
• 2 Transitional Rules in the Accession Treaties and National Implementation throughout the EU
• 3 EU8 Migrants’ Access to the UK Labour Market during the Transitional Period
• 4 De-Skilled and Devalued: Labour Market Status and Experience in the UK
• 5 Facilitating Family Life in the Aftermath of Post-Accession Migration to the UK
• 6 Citizenship in the Context of EU Enlargement: CEE Migrants as Union Citizens
• 7 Conclusion
• Appendix: Sample of Respondents
• Bibliography
• Index