Controlling Frontiers

Free Movement Into and Within Europe

Elspeth Guild, Didier Bigo, Didier Bigo

• Éditeur: Routledge
• Année: 2017
• ISBN:
  9781351948708
• Édition: 1
• Sujet: Sciences sociales
• Sous-sujet: Émigration et immigration

Focusing in particular on the European borders, this volume brings together an interdisciplinary group of academics to consider questions of immigration and the free movement of people, linking control within the state to the role of the police and internal security. The contributors all take as the point of departure the significance of European governmentality within the Foucauldian meaning as opposed to the European governance perspective which is already well represented in the literature. They discuss the relation between control of borders, introduction of biometrics and freedom. The book makes available in English an analysis of an important and politically highly charged field from a major French critical perspective. It draws on different disciplines including law, politics, international relations and philosophy.

Chapter 1

The Legal Framework:
Who is Entitled to Move?

Elspeth Guild

Introduction

One of fundamental characteristics of globalization is the elevation of the interest in movement in search of economic gain above that of the nation state to exercise controls across and within its borders. The transnational corporation uses its economic power to ensure the best possible conditions for its economic activities irrespective of national borders. Border controls which offend against the interests of the beneficiaries of globalization are the subject of attack by them. This simplicity of formulation masks much more complex processes which Beck describes as those “through which sovereign national states are criss-crossed and undermined by transnational actors with varying prospects of power, orientations, identities and networks”.¹

The right to move for economic gain, however, whether in the form of goods, capital, services or persons, in a globalising world is increasingly limited to those who are already economically advantaged. “As the national framework loses its binding force, the winners and the losers of globalization cease to sit at the same table. The new rich no longer ‘need’ the new poor.”² One of the constant features of the “globalising” world is the exclusion from the possibility of movement of the poor and those in search of international protection – refugees. So while on the one hand, the discussion about globalization focuses on the increasing power of legal persons to move (transnational corporations in particular) in relation to the state and their interests the other side of the coin is the increasingly draconian legal regime of the state to exclude from movement persons who are poor. This exclusion takes the form of legal measures by states in respect of persons defined as poor and by definition then unwanted (and unneeded) and thus to be excluded. However, this is not simply a question of blind exclusion. Andre Gorz states:

The social security system must be reorganized, and new foundations put in place. But we must also ask why it seems to have become impossible to finance this reconstruction. Over the past twenty years, the EU countries have become 50 to 70 percent richer. The economy has grown much faster than the population. Yet the EU now has twenty million unemployed, fifty million below the poverty line and five million homeless. What has happened to the extra wealth? From the case of the United States, we know that economic growth has enriched only the best off 10 percent of the population. This 10 percent has garnered 96 percent of the additional wealth. Things are not quite as bad in Europe, but they are not much better.

He goes on to stress that the rich are now virtual taxpayers denying the state the funds for social welfare programmes.³ Thus the exclusion of persons feared to be a potential burden to the social welfare system becomes a priority for the state.

In a globalising world where the rich do not need the new poor, the state which cannot afford the new poor takes ever more severe measures to ensure that they are excluded from the possibility to move across borders. The national legal measures excluding the poor are set against the economic interest of transnational corporations in the transport industry to reduce the costs of travel in order to increase their profits. So while the cost of international bus, train and air travel tickets is reduced, so compensatory measures are adopted by the state (and in this study I will look only at the European “state”) to make sure that the world’s poor cannot move but remain locked in their country of origin irrespective of international commitments, including human rights obligations which require them to provide protection to persons fearing persecution.

In this chapter legal mechanisms will be looked at whereby exclusion of the poor from movement into and within the European Union is achieved. The reason for this is because the Union itself can be compared with a form of “mini” globalization. It was based on the laisser-faire principle of free movement of goods, persons services and capital within the territory of the Member States. The abolition of national controls on movement was and continues to be the most important principle of Community law. The strength of European Community law to override national law within the areas of competence of the Union is no longer disputed. Thus globalization within the EU’s Europe is capable of completion. Within this context, the right and limitations of natural persons to move will be examined, as will the relationship between the right to move and economic strength for individuals within the Union and of those seeking to come to the Union. Conclusions will then be drawn about the right to move for individuals and economic power in the light of the globalization discussion. This chapter builds on the work of Bommes and Geddes (2000) on immigration and the welfare state, while their focus was different, their research has enriched this work.⁴

Immigration and Poverty: The European Union Legal Framework

Four different categories of migration in European Union law and policy will be looked at: visitors/tourists; labour migrants; family members and asylum seekers. In each category, the tests which are applied on financial means will be looked at, along with the consequences of failure to fulfil them at four stages in the migration process:

1. Application for a visa;
2. At the border;
3. Application for a residence permit;
4. Expulsion.

Within each category, there are two separate sets of measures: those which apply to Community nationals⁵ who are moving within the Union and those which apply to third country nationals.⁶ The differences between the treatment of the two groups is pronounced. Each group will be considered within each category.

The treatment of persons in European Community law varies depending on the nationality of the individual and whether or not a free movement right has been exercised. Thus there is one regime for Community nationals and their third country national family members migrating within the Union, another for Community nationals who do not move and a third regime which applies to third country nationals either seeking to come into or residing in the Union. For nationals of the Member States, the introduction of citizenship of the Union in 1993 was intended to create a single framework for all nationals of the Member States and bring about an approximation of their rights in Community law. Citizens of the Union moving to and living in a Member State other than that of their underlying nationality were promised the same rights as nationals of the host state. This promise will be examined in the light of the economic means of the individual: does Community law, at least in principle, achieve equality between its citizens in this field?

This chapter will not examine the legislative structure of the Union, however a few words of explanation are required for the non-expert reader. First, the European Union is made up of three principal parts – the European Community (established and regulated by the EC Treaty) which is the only part entitled to adopt binding EC law. The second part, the Common Foreign and Security Policy is outside the scope of this investigation. The third part, now entitled Provisions on Police and Judicial Cooperation in Criminal Matters, is important here, but only because before 1 May 1999 and the entry into force of the Amsterdam Treaty it included cooperation on Justice and Home Affairs: including the fields of immigration and asylum. This third part, commonly called the Third Pillar does not adopt “law” but rather sets out policy. For the period of interest to this chapter of the Third Pillar, from November 1993 when the Maastricht Treaty created it until the move out of its areas of concern of the fields of immigration and asylum, the venue was intergovernmental in format, and its products in these fields were primarily Resolutions, Recommendations and Decisions⁷ – statements of common policy among the Member States rather than law on which individuals could rely.⁸ In this chapter, references to Directives and Regulations are references to binding law of the European Community (ie Community law). References to Resolutions and Recommendations are to measures adopted in the intergovernmental fora which set out policy only.

As regards third country nationals, a welter of EU measures apply. Before 1 May 1999, only third country nationals with a family relationship with a Community national or as employees of a Community based company were encompassed in Community law on movement of persons. However, a series of measures which did not give rights to individuals was adopted in the intergovernmental forum of the Union, the former Third Pillar on the movement, economic activity and expulsion of third country nationals. With the entry into force of the Amsterdam Treaty, a new Part II Title IV has been inserted into the EC Treaty which gives the European Community the power and duty to regulate most forms of migration by third country nationals. The Community is in the process of exercising these duties; a series of measures (Directives and Regulations) on migration by third country nationals to the Member States have been proposed and some have now been adopted.⁹ The extent to which the treatment of third country nationals in these Union measures varies depending on the economic strength of the individual will be examined, along with the main differences between that treatment and the treatment of Community nationals.

The Categories

1. Tourists – Visitors

Tourists or visitors, for the purposes of EU immigration law, are persons who move from one state to another without exercising economic activities as employed or self employed or acquiring infrastructure. For migrant Community nationals a visit is not defined in terms of permitted length. Rather it is defined in t...